New York is one of two states that do not recognize the authority of family members to make decisions for incapacitated adults. The only way to ensure that your medical preferences are enforced when you are unable to express them yourself is by appointing an agent – your health care proxy – to inform doctors and other health care providers of your wishes.

In New York State, health care providers are not permitted to withhold life-sustaining treatment unless there is clear and convincing evidence (outlined in your living will) that you prefer otherwise. Without a health care proxy, your doctor may be required to provide you with medical treatment that you would have refused if you were able to do so. For example, if you were in a coma or vegetative state with no hope of recovery, or if you were terminally ill, the doctor may still be required to provide “heroic” measures to sustain your life, such as with respirators, feeding tubes and other treatments. A health care proxy lets YOU make your own medical decisions, rather than to leave them to doctors, lawyers and health care professionals who likely don’t know you and your wishes. Your living will provides clear guidelines of the medical decisions you would make were you able to do so.

If you become too sick to make health care decisions, someone else must decide for you. When a patient is too sick to speak or express his own desires about medical treatment, the family and doctors may be in the difficult position of guessing – and even disagreeing about – what treatment the sick person would have wanted. Feelings about these issues involve deeply held spiritual, medical and often religious, beliefs. Many times family members cannot agree and the decision can tear apart a family. At a time of tragedy and crisis, families need to support one another, not feud over emotional and painful decisions. Combining a living will with a health-care proxy is the best way to present “clear and convincing evidence” about the patient’s decisions.

The New York Health Care Proxy Law allows you to appoint someone you trust – for example, a family member or close friend – to decide about treatment if you lose the ability to decide for yourself. You can do this by using a Health Care Proxy to appoint your “health care agent.” Unlike a power of attorney for financial matters, only one can be acting at a time (no co-agents acting together) but you can have alternates. A living will is a document that provides specific instructions about health care treatment. The health care proxy does not give you agent the power to make non-health care decisions for you (ex. financial decisions).

You can give the person you select as little or as much authority as you want. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

Because artificial hydration and nutrition decisions cannot be made by your agent unless he/she has specific knowledge of your wishes, a living will helps establish the necessary “clear and convincing evidence” necessary to withhold these life sustaining treatments. Your views on this subject can be expressed orally and still be effective, however, it is certainly much better to put them in writing. You may wish to talk first with your doctor, religious advisor, family or other people before giving instructions to your agent.