Helpful Information About Health Care Proxy Forms
by Valerie Zaloom Buccino
A Health Care Proxy is used to appoint someone you trust to act as your agent in making health care decisions for you should you ever be unable to make decisions for yourself. If you become incapacitated, hospitals and doctors must follow your agent’s directions as if they were your own. It can also be used to document your wishes with regard to organ and tissue donation. A New York Health Care Proxy will be honored in most other U.S. states.
You may designate any competent adult to be your agent and alternate agent. But before you designate any person, make sure you discuss this choice with them and that they understand and are comfortable carrying out your wishes.
The form also gives you the option of appointing an alternate agent in case your first agent is unavailable or unable to act. Given the current situation, in which many household members may become ill, I strongly recommend designating an alternative agent. It is wise for one of the two agents to not be currently living in your home. Make sure that each person you name gets a signed copy of the document (emailing a scan is fine for now). If you change your mind about any of the details, simply notify your agents and/or complete a new health care proxy form.
You do not need a lawyer to fill out a NY Health Care Proxy Form, and it does not need to be notarized. However, New York State law requires that it be witnessed by two people who are not among the agents you name.
It is my belief that due to this extraordinary health emergency, witnessing a Health Care Proxy via video conference will be acceptable. This should be done in a manner similar to the instructions provided in the Governor’s Executive Order concerning notarization of documents. However, if you are able to arrange for two people who are not the people you named as agents to safely witness your signature, then do it in person. If the logistics of witnessing are unsafe or impossible at the moment—complete the form and sign it anyway. (It is quite possible that in the coming days and weeks, the Governor’s Office will use his emergency powers to clarify how to properly execute these documents while abiding by social distancing requirements. We are tracking this closely. However, making your wishes known shouldn’t wait. When this health emergency ends, you can re-execute the document in the usual way.
People Over Age 18 with Developmental Disabilities & Health Care Proxies
If you have an adult child with developmental disabilities and you do not have a guardianship order in place that provides for medical decision-making, then your child (and any other adult children you have) should also complete their own health care proxy form, if possible.
New York State law says that adults must be “competent” in order to execute a Health Proxy Form, meaning that they must be able to understand what they are signing. This doesn’t mean they need to understand every legal term or implication—most people don’t. It means that they must be able to understand that they are giving permission for someone they trust to make decisions for them concerning their health, if they cannot.
However, if your adult child is unable to understand the form well enough to sign it, the NY Family Health Care Decisions Act still provides for a rank-order list of who can make medical decisions: the incapacitated person’s guardian; spouse or domestic partner; adult child; parent; sibling; or close friend. The reason we prefer not to rely on this is that even if you, the parent or guardian, are “first” on this list, the authority of someone acting without a health care proxy is more limited. If you are in this situation, a lawyer like me should discuss guardianship with you at another time.
