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Fundamentals of a Health Care Proxy

The Public Health Law, a New YorkStatestatute, creates the authority for all competent adults (the “principal”) to appoint an agent to make health care decisions.  Every adult is presumed to be competent to make such an appointment.  Such an appointment should be done by signing and dating a Health Care Proxy in the presence of two adult witnesses who must also sign the proxy.  Pursuant to this statute, if the principal is unable to sign, someone else may sign the proxy for him, at his direction and in his presence, and in the presence of the two witnesses.  The person appointed as proxy cannot act as witness to the execution of the Health Care Proxy.               There are some restrictions as to who may be the proxy such as a physician who is currently treating the principal.  The Health Care Proxy must identify the principal and the agent, and indicate that the principal intends the agent to have authority to make health care decisions on the principal’s behalf.  The Health Care Proxy may include the principal’s wishes or instructions about health care decisions and limitations upon the agent’s authority, and may provide that it expires upon a specified date or upon the occurrence of a certain condition. (In my opinion, the principal should not indicate his wishes in the Health Care Proxy, since those wishes can change and, often at the last moment.  My position is that the principal indicate on the Health Care Proxy that he has “advised his agent as to his wishes in regard to artificial nutrition and hydration.”)  A Health Care Proxy may, but need not, be in the form set forth in the statute.  (In my opinion, it should be in that form for easy recognition by health care providers.)                The agent’s authority to act commences when a treating physician has made a determination that the principal lacks capacity to make health care decisions.  As long as the principal is competent, he can revoke the Health Care Proxy and can execute a new one.               A Health Care Proxy should be a separate document from a Durable Power of Attorney. A Health Care Proxy only appoints an agent to make medical decisions.  A Power of Attorney designates a person(s) to make financial and legal decisions for the principal. A health care proxy should not be appointed by a Durable Power of Attorney.               A Health Care Proxy may often include a statement to be signed separately by the principal indicating his/her wishes or instructions regarding tissue or organ donation. If the principal does not sign this statement it is not construed to imply a specific wish not to donate.  A competent adult may designate an alternate agent in the Health Care Proxy to serve in place of the agent, if the initial agent is unwilling or unable to act.  It is my opinion that there should always be at least one alternate agent designated in the Health Care Proxy.               This is a basic explanation of a Health Care Proxy. Health Care Proxies can be freely obtained from health care providers, but it is always best to consult an experienced elder law attorney who can oversee all legal matters, including the preparation and execution of a Health Care Proxy.