Under Section 2981 of the Public Health Law of the State of New York, an individual may appoint someone (an agent) that he or she trusts, for example, a family member or close friend, to make decisions with regard to medical treatment if the subject person of the health care proxy loses the ability to make his or her own decisions. An individual can do this by using a health care proxy in which a health care agent is appointed to make sure that health care providers follow his or her wishes.

By having a health care proxy, other health care professionals must follow the agents’ decisions as if they were the patients’. The individual can give his or her health care agent as little or as much authority as he or she wants. He or she can allow the agent to decide about all health care for the person or only certain treatments. Such decisions should be in accordance with the principal’s wishes including the principal’s religious beliefs or if the principal’s wishes are not known, then with the principal’s best interests.

A Health Care Proxy is only enforceable when the principal lacks capacity to make his or her own health care decisions as determined by an attending physician to a reasonable degree of medical certainty. A failure to have a Health Care Proxy in the event that it could be used on behalf of the principal leaves the attending physician without express direction as to how to address the medical condition of the principal.

In the event that the issue is whether or not to take any and all steps to keep the principal alive and there is no Health Care Proxy, it will be necessary to commence a legal proceeding in a New York State Supreme Court to make a determination in that regard which is often described as “pull the plug” on the individual. Such litigation is usually expensive and lengthy as well as dealing with the emotional aspects of the subject.  It is therefore very important that every adult execute a Health Care Proxy along with a Power of Attorney and a Will.

It is also possible to execute a “Living Will” which can be attached to the Health Care Proxy which document gives specific directions to the health care agent as to how the principal wishes to be medically treated in the event of a variety of circumstances and gives guidance to the health care agent in making any decisions related thereto.

If you have not done so, kindly contact an attorney regarding your need for three basic legal documents which are a Will, Power of Attorney and Health Care Proxy to protect not only you but also your family in the future.


From the desk of Peter J. Martin
Phone: 716-856-1344 ext. 3010
Fax: 716-856-1369
E-mail: pmartin@bouvierlaw.com