New York Health Care Proxy Statute: Agent Powers and Signing Rules

A New York health care proxy is a written document, signed in front of two adult witnesses, in which a competent adult (the “principal”) names someone else to make medical decisions if the principal loses the ability to make them. It is authorized by Article 29-C of the Public Health Law, needs no lawyer and no notary, and takes effect only after a doctor determines and documents that the principal cannot make decisions on their own.

Who Can Create One

Every adult in New York is presumed competent to appoint a health care agent unless a court has ruled otherwise. There is no residency requirement, so someone living outside New York can create a valid proxy under this law as long as they are at least 18 and have decision-making capacity.¹

The presumption breaks down in two situations: someone formally adjudged incompetent by a court, or someone with a guardian appointed under Article 81 of the Mental Hygiene Law or Article 17-A of the Surrogate’s Court Procedure Act. Even so, an Article 81 guardianship does not automatically strip every legal right; the court tailors the guardian’s powers to the individual, and the appointment alone is not conclusive evidence of incapacity for all purposes.² The practical takeaway is to sign your proxy while you are healthy, before anyone has reason to question your capacity.

Who Can Serve as Your Agent

You can name almost any adult you trust, but two categories of people are barred to prevent conflicts of interest:

Your attending physician cannot serve as your agent unless they are related to you.
Operators, administrators, and employees of a hospital or residential care facility where you are a patient or resident cannot serve unless they are related to you by blood, marriage, or adoption.

These restrictions apply only to the facility where you are currently receiving care. A nurse who works somewhere else can serve without any conflict.¹

Only one agent has authority at a time. You cannot appoint co-agents, but you can name an alternate who steps in if your primary agent is unavailable, unwilling, or unable to act.¹ The alternate inherits the same powers and the same duty to follow your wishes.

How to Sign a Valid Proxy

The document must be in writing, signed by you, and witnessed by two adults. Neither witness can be the person you are naming as agent. Each witness signs the form and confirms that you signed voluntarily and without coercion.¹ A verbal appointment is not enough.

You do not need a lawyer or a notary. Two adult witnesses are the only formality.³ The New York Department of Health publishes a free, fillable proxy form on its website in more than a dozen languages, including Spanish, Chinese, Korean, Russian, and Arabic.⁴ Nothing gets filed with a court or agency. Once signed and witnessed, the proxy is effective.

The proxy stays in effect indefinitely unless you revoke it or write in a specific expiration date. If the original paper is lost, a properly executed copy is generally acceptable. Pick witnesses who know you well and have no stake in your medical decisions; if anyone later argues you were pressured, their testimony is the key evidence.

When Your Agent’s Authority Starts

Your agent has no power to make medical decisions while you can still make them yourself. The authority activates only after your attending physician determines that you have lost decision-making capacity and documents that finding in your medical record.³ If you regain capacity, your control over your own care returns immediately.

The capacity determination is a clinical judgment, not a court proceeding. Your doctor assesses whether you can understand the nature and consequences of a proposed treatment and make a reasoned choice. If your incapacity stems from mental illness rather than something like anesthesia or a stroke, the physician making the determination must either be a psychiatrist or consult one, and the consultation must be noted in the chart.⁵

What Your Agent Can Decide

Once activated, your agent steps into your shoes for medical decisions. They can consent to or refuse any treatment you could have decided on yourself, including surgery, medication, and life-sustaining measures. They can also consult with specialists, seek second opinions, and transfer you to a different hospital or facility.⁶

Your agent is not free to substitute their own preferences for yours. The statute imposes a two-tier standard:

Your wishes come first. The agent must decide based on what you would have wanted, including your religious and moral beliefs.
Best interests apply only as a fallback. If your wishes are not reasonably known and cannot be determined with reasonable effort, the agent may switch to a general best-interests standard.

Before making a decision, the agent must consult with a licensed physician, registered nurse, nurse practitioner, physician assistant, psychologist, or licensed clinical social worker.⁶

The Artificial Nutrition and Hydration Carve-Out

Feeding tubes and intravenous fluids get special treatment. If your wishes about artificial nutrition and hydration are not reasonably known, your agent loses authority over those measures entirely. The agent cannot fall back on a best-interests analysis for this category the way they can for other decisions.⁶ Have a direct conversation with your agent about tube feeding and IV fluids, and put those wishes in the proxy itself or in a separate written statement. This is where most proxies fall short.

Mental Health Treatment

New York defines “health care” broadly enough to cover treatment for physical or mental conditions, so a health care proxy does reach psychiatric treatment. The agent still cannot consent to anything you could not lawfully consent to yourself, so the proxy cannot authorize euthanasia or assisted suicide.⁵

Access to Medical Records

Your agent can review your medical records to make informed decisions. Under federal HIPAA rules, a “personal representative” with state-law authority to make health care decisions for you has the same right to your protected health information that you would.⁷ Hospitals and providers must respond to your agent’s requests under the same timelines and fee limits that apply to patient requests. A licensed health care professional can deny access only if they determine it would cause substantial harm to you or someone else.

Your Agent Is Not on the Hook for Your Bills

Serving as your health care agent does not make anyone financially responsible for your medical bills. Federal regulations prohibit nursing homes from requiring a third party, including a health care agent or someone holding a power of attorney, to accept personal financial liability for a resident’s care costs. A facility may require an agent who controls the resident’s funds to pay the facility from those funds, but the agreement cannot make the agent personally liable if those funds run out.⁸ If a facility asks your agent to sign something that reads like a personal guarantee, that request violates federal law.

How to Revoke a Proxy

You can revoke your proxy at any time, as long as you are competent. New York keeps revocation deliberately easy. You do not need to put anything in writing. Any of the following will do:

Telling your agent or any health care provider that you want to revoke the proxy
Destroying the document
Signing a new health care proxy, which automatically replaces the old one

Even an informal statement to a nurse or aide can invalidate the document. The law presumes every adult is competent to revoke unless a court has ruled otherwise.⁹

If you revoke while receiving care, the physician, physician assistant, or nurse practitioner who learns of the revocation must immediately note it in your chart and notify both your former agent and the medical staff responsible for your care.⁹

Writing new instructions or limitations on your agent’s authority is not the same as revoking. Putting additional wishes on paper, even in a separate document, does not replace your proxy unless the new writing explicitly says so. Those new instructions become evidence of your wishes that your agent should follow.⁹

Divorce Automatically Revokes a Spousal Appointment

If you named your spouse as your agent and later divorce or legally separate, New York automatically revokes that appointment. You do not need to do anything; the divorce itself ends the spouse’s authority. If you still want your ex-spouse to serve after the split, you have to sign a new proxy.⁹ This catches people off guard, especially during the period between filing and finalizing. Legal separation triggers the same automatic revocation.

If No Agent Is Available

If neither your primary nor alternate agent can serve and you lack capacity, New York’s Family Health Care Decisions Act sets a priority list of people who may act as surrogate. In order:

A court-appointed guardian under Article 81 of the Mental Hygiene Law, if the court authorized health care decisions
A spouse or domestic partner, as long as you are not legally separated
An adult child, 18 or older
A parent
An adult sibling, 18 or older
A close friend

The highest-ranking person on the list who is reasonably available, willing, and competent becomes the surrogate. That person may also designate someone else on the list to serve, as long as no one in a higher class objects.¹⁰ Relying on this fallback is risky if your family members disagree about treatment. Naming your own agent and alternate keeps the decision with someone you chose and who knows what you want.

1
New York State Senate. New York Public Health Law PBH 2981 – Appointment of Health Care Agent; Health Care Proxy
2
NYCourts.gov. New York Mental Hygiene Law Article 81 – Section 81.29 Effect of the Appointment on the Incapacitated Person
3
New York State Department of Health. Health Care Proxy – Appointing Your Health Care Agent in New York State, Publication 1430
4
New York State Department of Health. Choosing Your Health Care Agent
5
NRC-PAD. New York State Consolidated Laws on Health Care Agents and Proxies – PHL 2983
6
New York State Senate. New York Public Health Law PBH 2982 – Rights and Duties of Health Care Agent
7
U.S. Department of Health & Human Services. Individuals’ Right Under HIPAA to Access Their Health Information
8
NCLC Digital Library. New Guidance Restricts Family Liability for Nursing Home Debt
9
New York State Senate. New York Public Health Law PBH 2985 – Revocation
10
New York State Senate. New York Public Health Law PBH 2994-d – Health Care Decisions for Adult Patients Without Surrogates