Some Basic Information on New York State Health Care Proxy Laws

• New York State is one of the only states in the United States that does not allow family members to make critical medical decisions for their loved one. In 1988, a ruling by the state's highest court, the Court of Appeals, made New York one of only two states (the other one is Missouri) where courts specifically held that family members cannot make these decisions. 
• Incapacitated patients with no Health Care Proxy are subject to having medical decisions made by those who may have no knowledge of the patient.
• If a person does not have a Health Care Proxy, the hospital must do everything to keep the patient alive; quality of life is not taken into consideration.
• Without a Health Care Proxy, New York State requires "clear and convincing" evidence - the highest civil standard - that someone said what their wishes were.  As interpreted by the Court, patients must provide specific instructions about the treatments they do not want and the medical circumstances under which they would refuse treatments.
• Without specifying on a Health Care Proxy form either, "I do not want artificial nutrition and hydration" or "My Proxy knows my wishes regarding artificial nutrition and hydration," the hospital must provide it, no matter what the quality of life might be or become. When there is nothing in writing, the "clear and convincing" evidence standard applies.
• Once artificial nutrition and hydration are started, it is very difficult to convince a hospital to remove it, unless there is solid "proof" that it was not the wish of the patient to receive artificial nutrition and/or hydration.
• A Health Care Proxy can be anyone the individual chooses. That person should, however, agree to comply with the wishes of the individual. The person selecting their Proxy should ensure that there is on-going dialogue as to what the person's wishes are.
• A Health Care Proxy only takes effect when a person is unable to make his or her own medical decisions.
• The Proxy is the surrogate - he or she speaks as if he or she is the patient - expressing the wishes of that patient as told to them by the patient.
• A Proxy can view medical records, is to be informed about all elements of care for the patient and is to be included in discussions with healthcare professionals about the care of the patient.
• A secondary Proxy may be appointed so that, in the event the primary Proxy is unable or unwilling to act as the "surrogate" for the patient, the secondary Proxy is available and knows the wishes of the patient.
• A Health Care Proxy can be changed or rescinded at any time.
• A lawyer is not needed to complete the form. Two witnesses sign to indicate that the person was not coerced into selecting a particular person as the Proxy.
• A copy of the Health Care Proxy form should be given to the person named, the secondary person named, the patients' doctor, lawyer and other interested parties. A copy should also be kept with other important papers. It is not unusual for people, when they travel, to take a copy with them. Most states will honor the Proxy appointed in another state.
• Living Wills can be used as "clear and convincing" evidence but they are not recognized in New York State, unless they name a Health Care Proxy.
• Living Wills often do not cover what happens to the patient.  Also, people change their minds about different treatments as they age. The importance of the ongoing conversations with one's Proxy is the best way to ensure that one's wishes are known and honored.

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