Frequently Asked Questions
Why should I choose a health care agent?
If you become unable, even temporarily, to make healthcare decisions, someone else must decide for you. Healthcare providers often look to family members for guidance. Family members may express what they think your wishes are related to a particular treatment. However, in New York State, only a healthcare agent you appoint has the legal authority to make treatment decisions if you are unable to decide for yourself. Appointing an agent lets you control your medical treatment by:
• allowing your agent to make healthcare decisions on your behalf as you would want them decided;
• choosing one person to make healthcare decisions because you think that person would make the best decisions;
• choosing one person to avoid conflict or confusion among family members and/or significant others. You may also appoint an alternate agent to take over if your first choice cannot make decisions for you.
Who can be a health care agent?
Anyone 18 years of age or older can be a healthcare agent. The person you are appointing as your agent or your alternate agent cannot sign as a witness on your Healthcare Proxy form. How do I appoint a healthcare agent?
All competent adults, 18 years of age or older, can appoint a healthcare agent by signing a form called a Healthcare Proxy. You don’t need a lawyer or a notary, just two adult witnesses. Your agent cannot sign as a witness. You can use the form printed here, but you don’t have to use this form.
When would my healthcare agent begin to make healthcare decisions for me?
Your healthcare agent would begin to make healthcare decisions after your doctor decides that you are not able to make your own healthcare decisions. As long as you are able to make healthcare decisions for yourself, you will have the right to do so.
What decisions can my healthcare agent make?
Unless you limit your healthcare agent’s authority, your agent will be able to make any healthcare decision that you could have made if you were able to decide for yourself. Your agent can agree that you should receive treatment, choose among different treatments and decide that treatments should not be provided, in accordance with your wishes and interests. However, your agent can only make decisions about artificial nutrition and hydration (nourishment and water provided by feeding tube or intravenous line) if he or she knows your wishes from what you have said or what you have written. The Healthcare Proxy form does not give your agent the power to make non- healthcare decisions for you, such as financial decisions.
Why do I need to appoint a healthcare agent if I'm young and healthy?
Appointing a healthcare agent is a good idea even though you are not elderly or terminally ill. A healthcare agent can act on your behalf if you become even temporarily unable to make your own healthcare decisions (such as might occur if you are under general anesthesia or have become comatose because of an accident). When you again become able to make your own healthcare decisions, your healthcare agent will no longer be authorized to act.
How will my healthcare agent make decisions?
Your agent must follow your wishes, as well as your moral and religious beliefs. You may write instructions on your Healthcare Proxy form or simply discuss them with your agent.
How will my healthcare agent know my wishes?
Having an open and frank discussion about your wishes with your healthcare agent will put him or her in a better position to serve your interests. If your agent does not know your wishes or beliefs, your agent is legally required to act in your best interest. Because this is a major responsibility for the person you appoint as your healthcare agent, you should have a discussion with the person about what types of treatments you would or would not want under different types of circumstances, such as:
• whether you would want life support initiated/continued/removed if you are in a permanent coma;
• whether you would want treatments initiated/continued/removed if you have a terminal illness;
• whether you would want artificial nutrition and hydration initiated/withheld or continued or withdrawn and under what types of circumstances.
Can my healthcare agent overrule my wishes or prior treatment instructions?
No. Your agent is obligated to make decisions based on your wishes. If you clearly expressed particular wishes, or gave particular treatment instructions, your agent has a duty to follow those wishes or instructions unless he or she has a good faith basis for believing that your wishes changed or do not apply to the circumstances.
Who will pay attention to my agent?
All hospitals, nursing homes, doctors and other healthcare providers are legally required to provide your healthcare agent with the same information that would be provided to you and to honor the decisions by your agent as if they were made by you. If a hospital or nursing home objects to some treatment options (such as removing certain treatment) they must tell you or your agent before or upon admission, if reasonably possible.
What if my healthcare agent is not available when decisions must be made?
You may appoint an alternate agent to decide for you if your healthcare agent is unavailable, unable or unwilling to act when decisions must be made. Otherwise, healthcare providers will make healthcare decisions for you that follow instructions you gave while you were still able to do so. Any instructions that you write on your Healthcare Proxy form will guide healthcare providers under these circumstances.
What if I change my mind?
It is easy to cancel your Healthcare Proxy, to change the person you have chosen as your healthcare agent or to change any instructions or limitations you have included on the form. Simply fill out a new form. In addition, you may indicate that your Healthcare Proxy expires on a specified date or if certain events occur. Otherwise, the Healthcare Proxy will be valid indefinitely. If you choose your spouse as your healthcare agent or as your alternate, and you get divorced or legally separated, the appointment is automatically cancelled. However, if you would like your former spouse to remain your agent, you may note this on your current form and date it or complete a new form naming your former spouse.
Can my healthcare agent be legally liable for decisions made on my behalf?
No. Your healthcare agent will not be liable for healthcare decisions made in good faith on your behalf. Also, he or she cannot be held liable for costs of your care, just because he or she is your agent.
Is a Healthcare Proxy the same as a living will?
No. A living will is a document that provides specific instructions about healthcare decisions. You may put such instructions on your Healthcare Proxy form. The Healthcare Proxy allows you to choose someone you trust to make healthcare decisions on your behalf. Unlike a living will, a Healthcare Proxy does not require that you know in advance all the decisions that may arise.
Instead, your healthcare agent can interpret your wishes as medical circumstances change and can make decisions you could not have known would have to be made.
Where should I keep my Healthcare Proxy form after it is signed?
Give a copy to your agent, your doctor, your attorney and any other family members or close friends you want. Keep a copy in your wallet or purse or with other important papers, but not in a location where no one can access it, like a safe deposit box. Bring a copy if you are admitted to the hospital, even for minor surgery, or if you undergo outpatient surgery.
May I use the Healthcare Proxy form to express my wishes about organ and/or tissue donation?
Yes. Use the optional organ and tissue donation section on the Healthcare Proxy form and be sure to have the section witnessed by two people. You may specify that your organs and/or tissues be used for transplantation, research or educational purposes. Any limitation(s) associated with your wishes should be noted in this section of the proxy. Failure to include your wishes and instructions on your Healthcare Proxy form will not be taken to mean that you do not want to be an organ and/or tissue donor.
Can my healthcare agent make decisions for me about organ and/or tissue donation?
Yes. As of August 26, 2009, your healthcare agent is authorized to make decisions after your death, but only those regarding organ and/or tissue donation. Your healthcare agent must make such decisions as noted on your Healthcare Proxy form.
Who can consent to a donation if I choose not to state my wishes at this time?
It is important to note your wishes about organ and/or tissue donation to your healthcare agent, the person designated as your decedent’s agent, if one has been appointed, and your family members. New York Law provides a list of individuals who are authorized to consent to organ and/or tissue donation on your behalf. They are listed in order of priority: your healthcare agent; your decedent’s agent; your spouse, if you are not legally separated, or your domestic partner; a son or daughter 18 years of age or older; either of your parents; a brother or sister 18 years of age or older; or a guardian appointed by a court prior to the donor’s death.