![New York Advance Directive Form [PDF]](/_next/image?url=%2Fimages%2Fdocuments%2Fadvance-directive-general.png&w=3840&q=75)
The New York advance directive form, also known as the New York health care proxy, is a legal document that allows a person (an agent) to make healthcare decisions on behalf of another person (a principal) if they’re unable to do so themselves. This form is essential in advance care planning, ensuring that medical choices reflect the person’s wishes.
The advance directive form has two main functions. First, as previously mentioned, it acts as a durable power of attorney for health care (medical power of attorney), empowering a designated individual to make decisions aligned with the principal's preferences.
Additionally, it can also include a living will in which individuals specify their medical preferences, particularly regarding life-sustaining medical treatments.
Signing Requirements for the New York Advance Health Care Directive
Section 2981 of the New York State Senate outlines the signing requirements for a health care proxy, which include the following:
Signing Requirements for New York
A competent adult can appoint a health care agent by signing and dating a health care proxy.
The signing must occur in the presence of two adult witnesses, who must also sign the proxy and confirm that the principal executed the proxy willingly and free from duress. Importantly, the person appointed as the agent cannot serve as a witness.
Additionally, there are special requirements for witnesses for certain facilities:
For individuals residing in mental hygiene facilities, at least one witness must be unaffiliated with the facility, and one witness must be a qualified psychiatrist or psychiatric nurse practitioner if the facility is also a hospital.
For those in facilities for people with developmental disabilities, at least one witness must not be affiliated with the facility, and one must be a qualified medical professional employed in or with experience in such facilities.
The law also allows for witnessing through audio-video technology under certain conditions if there’s a display of valid identification and direct interaction between the principal and the remote witnesses.
New York Advance Health Care Directive Revocation & Changing
A New York advance directive becomes effective when a doctor determines that the principal is incapacitated and cannot make their own medical decisions.
According to Section 2985, to revoke an advance directive for health care, the following rules apply:
Directive Revocation and Changes
The principal can revoke the advance directive by informing their agent or doctor they want to do so, either verbally or in writing.
Making a new health care advance directive automatically revokes the old one.
A divorce or legal separation automatically revokes a spouse's role as the agent unless specified otherwise.
Adding new written instructions doesn’t cancel the advance directive unless stated clearly.
Additional Legal Considerations for the New York Advance Health Care Directive
According to Section 2990, an advance directive form created in another state or jurisdiction will be valid in New York if it meets the legal requirements of the place where it was originally made.
Section 2988 specifies that a hospital, doctor, or insurance provider cannot force or prevent someone from creating an advance directive as a condition for receiving medical care or obtaining insurance.
As stated in Section 2984(3), if a hospital has a policy based on religious beliefs or moral convictions that conflicts with an agent’s decision, the hospital does not have to honor that decision. In that case, the hospital must inform the principal or agent about this policy before or when the patient is admitted, if possible.
Additionally, they must transfer the principal to another hospital that will honor the agent’s decisions. If it doesn’t happen, the hospital must seek legal guidance or follow the agent’s decision.
How to Choose a Health Care Agent in New York
To choose a health care agent in New York, select someone you trust and who is willing to take responsibility for making important medical decisions under stressful situations. Look for a responsible adult (at least 18 years old), such as a spouse, family member, or close friend, who understands your wishes.
On the other hand, certain people in New York cannot serve as health care agents. For example, your agent cannot be your doctor or health care provider unless they’re a relative. This rule helps you avoid potential conflicts of interest.
What Happens if You Don’t Have an Advance Directive in New York?
If you don’t have an advance directive in New York, medical decisions about your care will be made by a court-appointed guardian or your closest relatives. However, this scenario is not the best one because the guardian or your family may not fully understand your medical preferences.
Also, the lack of an advance directive can lead to disputes among family members, as they might have different opinions on the best medical choice in critical situations. You can avoid all these potential uncertainties by creating an advance directive, ensuring everyone will respect and honor your health care decisions.