Health care proxies

The Vital Role of Health Care Proxies: Protecting Your Medical Wishes in New York

In the complex world of healthcare decisions, unforeseen medical emergencies, and incapacitation, having a health care proxy in place is not just a prudent step; it can be a lifeline for individuals residing in New York.

I. Understanding Health Care Proxies

A health care proxy is a legal document that allows an individual (the "principal") to designate a trusted person (the "health care agent") to make healthcare decisions on their behalf if they become incapacitated or unable to communicate their preferences.
In New York, this document is governed by the Health Care Proxy Law (Public Health Law, Article 29-C).

II. The Perils of Not Having a Health Care Proxy

Failing to establish a health care proxy can expose individuals to a range of risks. Without a designated agent, medical decisions may fall to family members who may disagree on the course of treatment or may not be aware of the principal's wishes. This can lead to emotional distress and legal battles, hindering timely and appropriate medical care.

III. Choosing Your Agent

Selecting the right health care agent is a critical decision. It should be someone who:

1. You trust implicitly.
2. Understands your values, beliefs, and healthcare preferences.
3. Is willing and able to make tough decisions.
4. Is geographically accessible, as they may need to act swiftly.
5. Is aware of their responsibilities under New York law.

IV. Duties of the Agent

A health care agent's responsibilities include:

1. Advocating for the principal's medical preferences.
2. Making informed decisions in accordance with the principal's wishes.
3. Consulting with medical professionals to understand treatment options.
4. Considering the principal's quality of life when making decisions.

V. Accessing HIPAA Information and Directing Medical Care

The Health Insurance Portability and Accountability Act (HIPAA) restricts the release of a patient's medical information to unauthorized individuals. A health care agent has the legal authority to access the principal's medical records and communicate with healthcare providers as necessary to make informed decisions about their care.

VI. The Instrumental Role of Health Care Proxies in Decision-Making

When a principal becomes incapacitated, temporarily or permanently, the health care agent becomes their voice. The agent speaks for the principal so that known preferences are followed. This can alleviate the burden on family members who may be emotionally distraught and provide clarity in times of crisis.

VII. The Urgency of Timely Action

Creating a health care proxy should not be postponed. In the event of sudden incapacity it is too late to sign one. New York's Family Health Care Decisions Act then lets a family member or close friend decide for you in a hospital or nursing home, but in a statutory order you did not choose, with limits on withdrawing life-sustaining treatment; outside those settings, or where family disagree, a guardianship proceeding may become necessary. Guardianship is a costly and invasive legal process that involves the court appointing a guardian to make healthcare decisions on behalf of the incapacitated individual. This should be considered a last resort.

We can help you create a health care proxy which is a legal tool that lets you retain control over your medical decisions, even when you are unable to speak for yourself.

Talking with your agent

The document works well when your agent knows your preferences on hospitals, long-term care, and end-of-life treatment. We encourage a conversation at signing—not only a signature.

Part of a complete incapacity plan

Pair the health care proxy with a power of attorney and, when appropriate, a funded trust. Together they reduce the chance a family must seek guardianship in a crisis. Related: powers of attorney and guardianships.

Call (212) 518-3868 or request a free consultation. Attorney Advertising.

Working with Schwartsman Law Group

We meet clients in Brooklyn (Avenue Z), Manhattan (590 Madison Avenue, 21st Floor), and Manhasset. Every engagement starts with facts: who needs help, what assets exist, and which court or agency will decide the next step. We are licensed to practice only in New York. Phone consultations and in-office meetings are available; call (212) 518-3868 or request a free consultation.

Documents that usually help at the first meeting

Bring government ID, any existing wills, trusts, powers of attorney, health care proxies, recent account statements, deeds or co-op proprietary leases, and a list of family members with addresses. For probate matters, a certified death certificate speeds filing. For Medicaid matters, multi-year bank history and an explanation of gifts matter. Incomplete packets cause adjournments and agency requests for more information.

Court costs versus legal fees

Surrogate's Court filing fees under SCPA 2402 and other court-set costs (for example court evaluator fees in Article 81) are separate from the firm's professional fees. These pages describe court costs where relevant; they do not quote firm fees. Ask about engagement terms in your free consultation.