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What is a Health Care Proxy and Why Do You Need One?

Posted on June 14, 2023

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The New York Health Care Proxy Law allows you to appoint a person you trust to make healthcare decisions on your behalf if you can’t make them for yourself. You can also appoint an alternate who will take over if your first choice is unable or unwilling. Before you make any decisions, speak with a qualified Long Island estate planning attorneys.

Designating a healthcare proxy is a critical aspect of updating your estate plan. Creating a healthcare proxy is about more than choosing the decision maker. It also allows you to make your wishes known to that person. In the event that you become incapacitated and cannot speak for yourself, the law permits your proxy to interpret your wishes and apply them to any specific circumstances that may arise. Hospitals and other medical providers must honor those wishes as if you’d spoken to them yourself.

Anyone age 18 or older can choose an agent. This law is not just for the elderly, but for anyone who recognizes that there are any number of ways an adult can become incapacitated or unable to communicate their wishes.

To navigate the process of designating a healthcare proxy and updating your estate plan, it is recommended to seek the assistance of a trusted professional. At Schlessel Law, our Long Island estate planning attorneys can provide personalized advice tailored to your specific needs and help ensure that your healthcare wishes are properly documented and legally protected. Schedule a consultation at (516) 574-9630 and take the first step towards securing your future healthcare decisions.

Why is Having a Health Care Proxy Important?

Your healthcare agent is allowed to hire or fire doctors and other health professionals involved in your care. The language pertaining to this information is included in your Health Care Proxy.  Without a valid Health Care Proxy, federal regulations such as the Health Insurance Portability and Accountability Act (HIPAA), make it impossible for any person, even your spouse, to access your medical records. 

It is important to carefully read and ensure that your Health Care Proxy gives your agents access to the information they may need. It is also important to keep in mind that signing a Health Care Proxy will override any previous Health Care Proxys you might have previously signed. It is crucial to know that when you create a complete Health Care Proxy, you must be very careful when signing even a basic Health Care Proxy at the hospital. Signing one will cancel the comprehensive Health Care Proxy you have previously carefully planned.

The health care proxy will take effect when you are unable to make your own decisions as determined by a doctor. You are still responsible for your health care decisions until then. You can revoke it orally and sign a new proxy for your health care anytime you want.

When does the health care proxy go into effect?

The terms under which the proxy will take over will be outlined in the document. It is very important to work with an elder law attorney to draw up these terms. Once it goes into effect, your proxy will have all the information that would have normally been given to you. 

Will your spouse automatically become your health care proxy? 

The Family Health Care Decisions Act (FHCDA) allows family members or a close friend, if there are no families, to act as a representative of a patient to make health care decisions when the patient has not chosen a proxy. If you do not choose a proxy you risk that a person who you would not choose might become your proxy. If you are not married to your partner then you also risk them being unable to take care of you if you do not have a health care proxy signed. 

What is the Family Health Care Decisions Act? 

The FHCDA has been put in place to provide patients with greater control over their medical care, even in the event of incapacitation. However, it is important to note that the FHCDA only applies if the patient is in a hospital or a nursing home or if the decision is related to hospice care. In contrast, a health care agent appointed through a health care proxy can make decisions wherever the patient is. 

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When none of the individuals on the surrogate list are accessible, the FHCDA provides physicians at medical facilities with the option (but not the obligation) to make health care decisions without involving the court. The law outlines specific procedures and clinical standards that differ depending on whether it is a routine or major treatment, or a choice to refrain from or stop life-sustaining treatment.

New Yorkers are still strongly encouraged to sign a health care proxy, even if they have family members who can act as surrogates. By completing a health care proxy, individuals can ensure that their wishes for medical treatment are honored. They can provide their loved ones with clear guidance on how to make decisions on their behalf.

What’s the difference between a health care proxy and a living will? 

A living will outline your wishes for medical or health care treatment. It can work side by side with your health care proxy paperwork, but it is not the same thing. 

Why do you need both? Because it’s simply impossible to include every scenario in a living will. A medical proxy can review the situation and make decisions in real-time. In addition, living wills often only trigger when the situation is life-or-death. There are many less-severe situations that your medical proxy will be able to tackle on your behalf.

Health Care Proxy vs Power of Attorney

In accordance with the New York Health Care Proxy Law, individuals have the option to select a reliable individual to act as their representative in making healthcare choices in case they become unable to do so. By appointing a healthcare agent, you can guarantee that your healthcare providers will respect your preferences, even if your medical condition changes over time. The decisions made by your agent hold equal significance as if they were your own. You have the flexibility to grant your health care agent as much or as little authority as you desire, allowing them to make all healthcare decisions or only specific ones. Additionally, you can provide your agent with instructions that they must follow.

A power of attorney (POA) is a valuable tool for older individuals and anyone seeking to designate a trusted person to act on their behalf when they are unable to do so. With a POA, individuals can privately appoint a substitute decision-maker, offering a cost-effective option, though legal assistance may be necessary. 

In the event that the individual becomes incapacitated, a durable healthcare power of attorney (POA) remains valid in such circumstances. A financial POA is particularly advantageous for proactive planning in anticipation of future incapacity but may be limited to decisions about an individual’s estate. However, a financial POA can still be used for purposes such as empowering a deployed service member to delegate bill payments, property sales, and other business matters to a trusted individual.

While it is possible for an individual to serve as both the power of attorney and health care proxy agent of a person, it is not mandatory. In cases where a loved one has multiple adult children who have been tasked with the responsibility of being the agent or proxy, they may choose to share the responsibility. However, there may be instances where the decisions made by both types of agents overlap, such as when a medical decision necessitates utilizing the principal’s financial resources to cover the cost of care.

To ensure that your wishes are properly documented and legally binding in accordance with New York state laws, it is recommended to consult with a Long Island estate planning attorney. An experienced attorney can guide you through the process and tailor the documents to your specific circumstances. Contact Schlessel Law to schedule a consultation today.

Feature Health Care Proxy Power of Attorney
Purpose Designate a representative for healthcare choices Designate a trusted person for decision-making
Legal Basis New York Health Care Proxy Law Legal agreement or document
Decision-Making Authority Grants authority to make healthcare decisions Grants authority for various legal and financial matters
Flexibility Can grant as much or as little authority desired Can be customized based on individual needs
Instructions Can provide specific instructions to follow Can delegate specific responsibilities or tasks
Validity Applies when individual becomes unable to decide Remains valid even if individual becomes incapacitated
Cost-effectiveness No significant cost involved May require legal assistance
Overlapping Decisions May overlap with financial decisions in some cases May overlap with healthcare decisions in some cases

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Our office can help you put together both a living will and a medical proxy document that will protect you. Contact us to get started today.

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