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

Posted on March 2, 2023


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 estate planning attorney.

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.

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.

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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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