Health Care Proxy and Advance Directive Attorneys
A health care proxy names one person you trust to make medical decisions for you when you cannot make them yourself. It takes effect only if a physician determines you lack the capacity to decide, and it stops the moment you regain it. Without one, your doctors may have to look to state surrogate rules, or your family may have to ask a court to appoint a guardian.
Every adult needs this document. A car accident, a surgery complication, or a sudden illness can leave anyone unable to speak for themselves. Milvidskiy Law Group P.C. prepares health care proxies and advance directives as part of nearly every estate plan we draft.
The three states use different names for the same idea. New York calls the document a health care proxy and the person you name a health care agent. New Jersey calls it a proxy directive, also described as a durable power of attorney for health care, and the person you name a health care representative. Connecticut calls it an appointment of health care representative. In each state the document can travel with a living will, which states your treatment wishes in writing. This page uses “health care proxy” and “agent” for all three.
Other Names for the Same Document
You may also see this document called a medical power of attorney, a health care power of attorney, a durable power of attorney for health care, a health care agent designation, a health care surrogate designation, or simply an advance health care directive. Some of these names come from other states’ statutes and some are informal, but they all describe a document that appoints your medical decision-maker. If a hospital form, an article, or an older document in your files uses one of these terms, it is addressing the same question this page does.
Key Takeaways:
- A health care proxy lets a person you choose make medical decisions for you only after a physician determines you cannot make them yourself. Until then, you decide.
- The document is called a health care proxy in New York, a proxy directive in New Jersey, and an appointment of health care representative in Connecticut. The concept is the same in all three states.
- A proxy is designed to work alongside a living will, a HIPAA authorization, and a financial power of attorney. Together they cover both medical and financial decisions during incapacity.
What Your Agent Can Decide, and When
Your agent’s authority begins on a determination of incapacity. In New York, the attending practitioner must make that determination in writing. In New Jersey and Connecticut, the trigger is similar: a physician concludes you cannot understand your condition or the benefits and risks of treatment. Until that happens, the document sits in a drawer and you make every decision yourself.
Once the proxy is active, your agent can generally make any health care decision you could make. That includes:
- Consenting to or refusing tests, surgery, medication, and other treatment.
- Choosing among hospitals, nursing facilities, and home care.
- Reviewing your medical records and speaking with your physicians.
- Deciding whether to start, continue, or stop life-sustaining treatment, subject to any limits you write in.
The agent must act on your wishes, including your religious and moral beliefs, when those wishes are known. If your wishes cannot be determined, the agent decides in your best interests. New York adds a specific rule: your agent cannot decide about artificial nutrition and hydration unless your agent knows your wishes on that subject. This is one reason we ask clients to address feeding tubes and IV fluids directly in the document or in a living will.
What an Agent Cannot Do
A health care proxy covers medical decisions only. Your agent cannot access your bank accounts, pay your bills, sell property, or sign contracts. Those powers come from a separate financial power of attorney. Your agent also cannot override you while you still have capacity. In New York, if you object to a decision or to the finding of incapacity, your objection controls unless a court rules otherwise. Requirements vary by state, and some treatments are restricted or excluded by statute in each state, so review any specific concern with an attorney.
Choosing Your Agent and Alternates
The right agent is someone who knows you, can stay calm in a hospital hallway, and will follow your wishes even when family members disagree.
Most standard forms, including the New York and Connecticut statutory forms, name one agent at a time with an alternate who steps in if the first agent is unwilling or unable to serve. Co-agents are generally not the structure these forms use: physicians need one voice in an emergency, and two agents who disagree can stall care. We usually recommend a first choice and at least one backup, named in order.
Some people cannot serve. Each state restricts, for example, certain employees of the facility where you are a patient from acting as your agent. Your agent also cannot sign as a witness on your form.
Guidance Versus Binding Instructions
You can give your agent broad discretion, or you can bind your agent with specific instructions written into the document. Rigid instructions may not fit the actual medical situation. Broad discretion asks a lot of the person carrying it. Many clients choose a middle path: a proxy with few limits, paired with a living will that describes the outcomes they would and would not accept, and a frank conversation with the agent.
How the Proxy Fits With Your Other Documents
A health care proxy is one of four documents that work together during incapacity.
- Living will. States your wishes about life-sustaining treatment, comfort care, and similar matters. New Jersey calls it an instruction directive. The living will speaks to your physicians directly; the proxy gives a person the power to apply it.
- HIPAA authorization. Federal privacy rules limit who can see your medical information. A standalone HIPAA release lets your agent, alternates, and other named people obtain records and talk with providers before a formal incapacity finding, which is when families most often hit a wall.
- Financial power of attorney. Covers money, property, insurance, and benefits. A springing power of attorney, which takes effect only on incapacity, is one option some clients pair with their health care documents. The health care proxy and the financial power can name the same person or different people, and we discuss the trade-offs with every client.
- Will or trust. These control what happens after death. The proxy has no effect after death, apart from anatomical-gift decisions some forms let you address.
Taken together, these documents form the incapacity side of a complete estate plan. For older clients, they are also the foundation of elder law planning, because long-term care decisions often fall to the agent.
Who Needs a Health Care Proxy, and What Happens Without One
Anyone 18 or older. Parents are often surprised that once a child turns 18, they lose the automatic right to make medical decisions or even to receive information from a hospital. A college student injured away from home may be treated for days before a parent learns any details. A proxy and a HIPAA authorization signed before the student leaves for school solve that problem. Parents of younger children should also make sure their own documents are in place; our page on planning for parents of young children explains why.
Married couples need proxies too. A spouse does not automatically have the last word, and adult children, siblings, or a second spouse may disagree about care. Unmarried partners have even less standing without a document. Anyone facing surgery or entering a nursing facility should review their proxy before admission.
Without a Proxy
If you become incapacitated with no proxy, three things can happen, and none is ideal.
- Surrogate decision laws. Each state has rules that let certain family members make some decisions in a set order of priority. The person the law selects may not be the person you would choose, and the surrogate’s authority is often narrower than an agent’s.
- Family disputes. When relatives disagree and no one has clear authority, treatment can stall while the hospital’s ethics committee or lawyers sort it out.
- Guardianship. If no one can act, a family member may have to petition a court for adult guardianship. The process is public, takes time, and costs far more than a proxy.
Portability, Copies, and Updates
States generally give effect to a health care document validly signed elsewhere, and hospitals in practice honor out-of-state forms that clearly name an agent. Still, terminology and execution rules differ. If you split time between states or have moved, an attorney can confirm whether your form should be re-signed on the local form.
Keep the original where your agent can reach it, and give copies to your agent, your alternates, and your primary physician. Ask that a copy be placed in your medical record. A proxy locked in a safe-deposit box helps no one on a Friday night.
Review your proxy after a marriage, divorce, death, or falling-out with your agent, after a move, and every few years regardless. You can revoke or replace it at any time while you have capacity. Signing a new proxy generally revokes the earlier one, but tell your prior agent and your physicians so an outdated copy does not surface.
When a Proxy May Not Be Enough
A proxy does not solve every problem. If you have no one you trust to serve, a court-supervised arrangement may be safer. If you want a physician’s orders in the chart before an emergency, a portable medical order form under your state’s program may be needed as well. If your concern is a mental health crisis, some states offer separate psychiatric advance directives. Our attorneys will say so plainly when another tool fits better.
What Our Service Includes
When Milvidskiy Law Group P.C. prepares your health care proxy and advance directive, the engagement typically includes:
- A conversation about your values, medical history, and the people in your life, so the documents reflect what you want.
- Drafting the proxy on the form appropriate to your state, with alternates named in order and any limits you choose.
- A living will tailored to your wishes, and a HIPAA authorization naming your agent, alternates, and others you choose.
- Coordination with your financial power of attorney and the rest of your estate plan so the right people are in charge of each area.
- Supervised signing with the witnesses each state requires.
- Guidance on distributing copies, and periodic review through our Client Care Program as your circumstances change.
Schedule a Health Care Proxy Consultation
If you do not have a health care proxy, or yours names someone who has died or drifted from your life, now is the time to fix it. Our attorneys practice in New York, New Jersey, and Connecticut and can prepare a proxy on its own or as part of a complete plan with a will, trust, and power of attorney. Contact Milvidskiy Law Group P.C. to schedule a consultation.
This page is provided for general informational purposes only and does not constitute legal advice. Laws differ by state and change over time. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
What is a health care proxy?
A health care proxy is a document in which you name a person, called your agent, to make medical decisions for you if you cannot make them yourself. It takes effect only after a physician determines you lack capacity, and you keep making your own decisions until then. New Jersey calls the same document a proxy directive, and Connecticut calls it an appointment of health care representative.
Is a medical power of attorney the same as a health care proxy?
Yes, in substance. Medical power of attorney, health care power of attorney, durable power of attorney for health care, health care agent designation, and health care surrogate designation are all names for a document that appoints someone to make medical decisions for you. The name depends on the state and the form. Whatever it is called, the questions are the same: who decides, when their authority begins, and what limits you place on it.
What is the difference between a health care proxy and a living will?
A health care proxy names a person to decide for you. A living will states your treatment wishes in writing, especially about life-sustaining care, and speaks directly to your physicians. Most people sign both, because the proxy supplies a decision-maker and the living will supplies the instructions that person should follow.
When does my health care agent's authority begin?
Your agent’s authority begins when a physician determines you cannot understand your condition and treatment options or communicate a decision. In New York, that determination must be made in writing by the attending practitioner. If you later regain capacity, decision-making returns to you.
Can I name two people as co-agents on my health care proxy?
Most standard forms, including the New York and Connecticut statutory forms, name one agent at a time and let you name an alternate who serves only if the first agent cannot. Naming a single agent avoids deadlock when physicians need a fast answer. We usually recommend a first choice and at least one backup, listed in order.
Can my health care agent make financial decisions or pay my bills?
No. A health care proxy covers medical decisions only. Authority over bank accounts, bills, property, and benefits comes from a separate financial power of attorney. Many clients name the same person for both roles, but you can choose different people if that fits your family better.
Does my college student need a health care proxy?
Yes. Once a child turns 18, parents lose the automatic right to make medical decisions or even to receive information from a hospital. A health care proxy and a HIPAA authorization signed before the student leaves for school let a parent step in if the student is injured or seriously ill away from home.
Is a health care proxy signed in New York valid in New Jersey or Connecticut?
In general, states give effect to health care documents validly signed in another state, and hospitals in practice honor out-of-state forms that clearly name an agent. Terminology and signing rules differ, though, so if you have moved or split time between states, an attorney can confirm whether your existing document should be re-signed on the local form.
What happens if I do not have a health care proxy?
Physicians may have to rely on state surrogate decision laws, which pick a family member in a set order that may not match your choice and often grant narrower authority. If relatives disagree or no one qualifies, your family may have to petition a court for guardianship, which is public, slow, and far more expensive than a proxy.
Do I need a HIPAA authorization if I already have a health care proxy?
A separate HIPAA authorization is a useful companion. The proxy gives your agent access to records once you are found to lack capacity, but a HIPAA release lets your agent, alternates, and other named people speak with providers and obtain information before that point. It also covers people you want informed but do not want making decisions.
How often should I update my health care proxy?
Review it after a marriage, divorce, death, or falling-out with your agent, after a move to another state, and every few years regardless. You can revoke or replace it at any time while you have capacity. Signing a new proxy generally revokes the old one, but tell your prior agent and physicians so an outdated copy does not resurface.
