How do I create an advance healthcare directive in New York?
1. Types Recognized
New York recognizes: (a) Health Care Proxy (N.Y. Pub. Health Law Art. 29-C) — the dominant instrument; (b) Living Will — not codified but enforced under Matter of Eichner and Matter of Westchester County Medical Center (O'Connor) "clear and convincing evidence" standard; (c) MOLST (Medical Orders for Life-Sustaining Treatment, Pub. Health Law § 2977-a); (d) DNR orders.
2. Statutory Form
The Health Care Proxy form is set forth in Pub. Health Law § 2981. No mandatory living will form, but the NY State Bar Association and Department of Health publish models.
3. Execution Formalities
Principal must be 18+ and have capacity. The Proxy must be SIGNED and DATED in the presence of TWO adult witnesses, who also sign attesting capacity and voluntariness (§ 2981(2)). The agent CANNOT serve as a witness. NO notary required.
4. Healthcare Agent Authority
Under § 2982, the agent has authority to make any healthcare decision the principal could make, but decisions about ARTIFICIAL NUTRITION AND HYDRATION require the agent to have "reasonable knowledge" of the principal's wishes. The proxy becomes effective when the attending physician determines the principal lacks capacity (§ 2983).
5. Pregnancy Clauses
New York has NO statutory pregnancy exclusion. The directive is honored regardless of pregnancy status.
6. Reciprocity
Section 2990 recognizes proxies executed in other jurisdictions in compliance with that jurisdiction's law.
7. MOLST
The MOLST (DOH-5003) is a physician-signed order portable across care settings, recognized by Pub. Health Law § 2977-a, used for seriously ill patients.
8. Revocation
Under § 2985, the proxy may be revoked by: notifying agent or healthcare provider orally, in writing, by destruction, by executing a new proxy, or by divorce/legal separation (which automatically revokes spouse-agent).
9. Default Surrogate (FHCDA)
The Family Health Care Decisions Act (Pub. Health Law Art. 29-CC, § 2994-a et seq.) provides surrogate hierarchy for patients without a proxy: court-appointed guardian > spouse/domestic partner > adult child > parent > adult sibling > close friend.
This is legal information, not legal advice.
- Need clear-and-convincing-evidence living will for ANH decisions
- Surrogate disputes under FHCDA hierarchy
- Coordinating proxy with elder law and Medicaid planning
- N.Y. Pub. Health Law Art. 29-C (Health Care Proxy)
- N.Y. Pub. Health Law Art. 29-CC (FHCDA)
- N.Y. Pub. Health Law § 2977-a (MOLST)
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.