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Ten Questions and Answers on Health Care Proxies

1. What is a health care proxy?

A health care proxy is a legal document for authorizing someone, called a "health care agent" to make medical decisions on behalf of the person called a "principal," if he or she becomes incapable of making them. A health care proxy is referred to as an "advance directive" because it is signed in advance of possible mental incapacity. The health care agent is expected to make decisions according to the wishes of the principal about what medical treatments shall or shall not be administered. If the principal’s wishes are not known, the health care agent can make decisions based on the principal’s "best interests," with one exception. In New York, the agent must "know or able to determine" the wishes of the principal concerning the use of artificial nutrition and hydration in order to make decisions about their use.

2. Who can sign a health care proxy?

In New York a health care proxy can be signed by anyone 18 years of age or older, or who has married, or who is the parent of a child.

3. What triggers the use of a health care proxy?

The effectiveness of a health care proxy is triggered by the temporary or permanent inability of the principal to make own health care decisions. If the ability to make decisions returns, the proxy is no longer effective. A subsequent loss of ability re-activates the proxy.

4. What formalities are required for signing a health care proxy?

New York State requires the signature of two witnesses who are not named as the health care agent or as a "successor" agent. Their signatures attest only to the belief that the principal signed of his or her free will.

5. What is the difference between a health care proxy and a durable power of attorney for health care?

There is no substantive difference but New York State law requires the use of a proxy. The other document is used in many other states. Both documents, however, appoint an agent to make health care decisions. The out-of-State durable power of attorney for health care sometimes incorporates the principal’s medical wishes. New York decided not to use the phrase to avoid confusion between financial and medical powers.

6. How many agents can a principal name?

New York permits the appointment of only one agent to act at a time. This limitation does not prevent the appointment of one or more "successor" agents who can assume the role if the named agent is unavailable, unable or unwilling to act when necessary.

7. What are the advantages of health care proxies?

Health care proxies offer the opportunity for a person with strong convictions about the care they want, or don’t want, to affect medical decision-making for themselves, even if their own voice is stilled. They provide maximum flexibility for a health care agent to make decisions, based on the day-by-day conditions of a patient.

8. What are the disadvantages of health care proxies?

There are no disadvantages to health care proxies. But they can best be used to fulfill the patient’s wishes if the agent is aware of those wishes. Hesitancy in discussing health care preferences interferes with the effective use of proxies. Detailed communication between principal and agent about end-of-life wishes is most desirable.

9. Can health care proxies be used out-of-State?

The usefulness of the health care proxy out-of-State depends upon the law or policy of the second state. The best practice for a person who lives elsewhere part-time, or visits frequently, is to sign a similar document provided under the other state’s law.

10. What are the common misunderstandings about health care proxies?

Most New York proxy forms contain a statement to be signed by the witnesses that the principal was "of sound mind," and most believe this statement necessary. The language, however, is not required by the statute which "presumes" the patient competent to sign unless determined otherwise by a court.

 

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