Why should I choose a
health care agent?
If you become unable, even temporarily, to make health
care decisions, someone else must decide for you. Health
care providers often look to family members for guidance.
Family members may express what they think your wishes are
related to a particular treatment. However, in New York
State, only a health care agent you appoint has the legal
authority to make treatment decisions if you are unable to
decide for yourself. Appointing an agent lets you control
your medical treatment by:
- allowing your agent to make health care decisions on
your behalf as you would want them decided;
- choosing one person to make health care decisions
because you think that person would make the best
decisions;
- choosing one person to avoid conflict or confusion
among family members and/or significant others. You
may also appoint an alternate agent to take over if
your first choice cannot make decisions for you.
Who can be a health care agent?
Anyone 18 years of age or older can be a health care
agent. The person you are appointing as your agent or your
alternate agent cannot sign as a witness on your Health
Care Proxy form.
How do I appoint a health care agent?
All competent adults, 18 years of age or older, can
appoint a health care agent by signing a form called a
Health Care Proxy. You don’t need a lawyer or a notary,
just two adult witnesses. Your agent cannot sign as a
witness. You can use the form printed here, but you
don’t have to use this form.
When would my health care agent begin
to make health care decisions for me?
Your health care agent would begin to make health care
decisions after your doctor decides that you are not able
to make your own health care decisions. As long as you are
able to make health care decisions for yourself, you will
have the right to do so.
What decisions can my health care
agent make?
Unless you limit your health care agent’s authority,
your agent will be able to make any health care decision
that you could have made if you were able to decide for
yourself. Your agent can agree that you should receive
treatment, choose among different treatments and decide
that treatments should not be provided, in accordance with
your wishes and interests. However, your agent can only
make decisions about artificial nutrition and hydration
(nourishment and water provided by feeding tube or
intravenous line) if he or she knows your wishes from what
you have said or what you have written. The Health Care
Proxy form does not give your agent the power to make
non-health care decisions for you, such as financial
decisions.
Why do I need to appoint a health care
agent if I’m young and healthy?
Appointing a health care agent is a good idea even
though you are not elderly or terminally ill. A health
care agent can act on your behalf if you become even
temporarily unable to make your own health care decisions
(such as might occur if you are under general anesthesia
or have become comatose because of an accident). When you
again become able to make your own health care decisions,
your health care agent will no longer be authorized to
act.
How will my health care agent make
decisions?
Your agent must follow your wishes, as well as your
moral and religious beliefs. You may write instructions on
your Health Care Proxy form or simply discuss them with
your agent.
How will my health care agent know my
wishes?
Having an open and frank discussion about your wishes
with your health care agent will put him or her in a
better position to serve your interests. If your agent
does not know your wishes or beliefs, your agent is
legally required to act in your best interest. Because
this is a major responsibility for the person you appoint
as your health care agent, you should have a discussion
with the person about what types of treatments you would
or would not want under different types of circumstances,
such as:
- whether you would want life support
initiated/continued/removed if you are in a permanent
coma;
- whether you would want treatments
initiated/continued/removed if you have a terminal
illness;
- whether you would want artificial nutrition and
hydration initiated/withheld or continued or withdrawn
and under what types of circumstances.
Can my health care agent overrule my
wishes or prior treatment instructions?
No. Your agent is obligated to make decisions based on
your wishes. If you clearly expressed particular wishes,
or gave particular treatment instructions, your agent has
a duty to follow those wishes or instructions unless he or
she has a good faith basis for believing that your wishes
changed or do not apply to the circumstances.
Who will pay attention to my agent?
All hospitals, nursing homes, doctors and other health
care providers are legally required to provide your health
care agent with the same information that would be
provided to you and to honor the decisions by your agent
as if they were made by you. If a hospital or nursing home
objects to some treatment options (such as removing
certain treatment) they must tell you or your agent BEFORE
or upon admission, if reasonably possible.
What if my health care agent is not
available when decisions must be made?
You may appoint an alternate agent to decide for you if
your health care agent is unavailable, unable or unwilling
to act when decisions must be made. Otherwise, health care
providers will make health care decisions for you that
follow instructions you gave while you were still able to
do so. Any instructions that you write on your Health Care
Proxy form will guide health care providers under these
circumstances.
What if I change my mind?
It is easy to cancel your Health Care Proxy, to change
the person you have chosen as your health care agent or to
change any instructions or limitations you have included
on the form. Simply fill out a new form. In addition, you
may indicate that your Health Care Proxy expires on a
specified date or if certain events occur. Otherwise, the
Health Care Proxy will be valid indefinitely. If you
choose your spouse as your health care agent or as your
alternate, and you get divorced or legally separated, the
appointment is automatically cancelled. However, if you
would like your former spouse to remain your agent, you
may note this on your current form and date it or complete
a new form naming your former spouse.
Can my health care agent be legally
liable for decisions made on my behalf?
No. Your health care agent will not be liable for
health care decisions made in good faith on your behalf.
Also, he or she cannot be held liable for costs of your
care, just because he or she is your agent.
Is a Health Care Proxy the same as a
living will?
No. A living will is a document that provides specific
instructions about health care decisions. You may put such
instructions on your Health Care Proxy form. The Health
Care Proxy allows you to choose someone you trust to make
health care decisions on your behalf. Unlike a living
will, a Health Care Proxy does not require that you know
in advance all the decisions that may arise. Instead, your
health care agent can interpret your wishes as medical
circumstances change and can make decisions you could not
have known would have to be made.
Where should I keep my Health Care
Proxy form after it is signed?
Give a copy to your agent, your doctor, your attorney
and any other family members or close friends you want.
Keep a copy in your wallet or purse or with other
important papers, but not in a location where no one can
access it, like a safe deposit box. Bring a copy if you
are admitted to the hospital, even for minor surgery, or
if you undergo outpatient surgery.
May I use the Health Care Proxy form
to express my wishes about organ and/or tissue donation?
Yes. Use the optional organ and tissue donation section
on the Health Care Proxy form and be sure to have the
section witnessed by two people. You may specify that your
organs and/or tissues be used for transplantation,
research or educational purposes. Any limitation( s)
associated with your wishes should be noted in this
section of the proxy.
Failure to include your wishes and instructions on your
Health Care Proxy form will not be taken to mean that you
do not want to be an organ and/or tissue donor.
Can my health care agent make
decisions for me about organ and/or tissue donation?
No. The power of a health care agent to make health
care decisions on your behalf ends upon your death. Noting
your wishes on your Health Care Proxy form allows you to
clearly state your wishes about organ and tissue donation
Who can consent to a donation if I
choose not to state my wishes at this time?
It is important to note your wishes about organ and/or
tissue donation so that family members who will be
approached about donation are aware of your wishes.
However, New York Law provides a list of individuals who
are authorized to consent to organ and/or tissue donation
on your behalf. They are listed in order of priority: your
spouse, a son or daughter 18 years of age or older, either
of your parents, a brother or sister 18 years of age or
older, a guardian appointed by a court prior to the
donor’s death, or any other legally authorized person.
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