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NEW YORK LEGAL INFORMATION
Living Will (Advanced Medical Directive)-- Links and Statutes
Notice
The State of New York does not specifically have a Living Will or Advance Medical Directive statute. However, New York does have a statute allowing for the designation of a health care "proxy" who may make decisions on behalf of the principal and the statute specifically allows the principal to state his or her wishes regarding future treatment. Thus, the below information relates to the naming of a health care "proxy" under New York law. Also, there is nothing in New York law that prevents an individual from executing a Living Will form as used in other states and combining that declaration with a naming of a health care proxy. The standard MedLawPlus.comŽ form combines both a Living Will declaration with the naming a health care agent or proxy.
For more information, see Estate Planning Basics: The Health Care Proxy by New York Office of Aging.
Health Care Proxies
Witnesses: Two witnesses are necessary to the signature of the maker;
Who may be a witness? New York law contains the following restrictions on who can be a witness to a health care proxy:
- The witnesses shall state that the principal appeared to execute the proxy willingly and free from duress. The person appointed as agent shall not act as witness to execution of the health care proxy.
- For persons who reside in a mental hygiene facility operated or licensed by the office of mental health, at least one witness shall be an individual who is not affiliated with the facility and, if the mental hygiene facility is also a hospital as defined in subdivision ten of section 1.03 of the mental hygiene law, at least one witness shall be a qualified psychiatrist.
- For persons who reside in a mental hygiene facility operated or licensed by the office of mental retardation and developmental disabilities, at least one witness shall be an individual who is not affiliated with the facility and at least one witness shall be a physician or clinical psychologist who either is employed by a school named in section 13.17 of the mental hygiene law or who has been employed for a minimum of two years to render care and service in a facility operated or licensed by the office of mental retardation and developmental disabilities, or who has been approved by the commissioner of mental retardation and developmental disabilities in accordance with regulations approved by the commissioner. Such regulations shall require that a physician or clinical psychologist possess specialized training or three years experience in treating developmental disabilities.
New York Statutes, Consolidated Laws, Public Health, Ch. 45, Sections 2981.
Who may be a health care proxy? New York law contains the following restrictions on who can be a health care proxy:
- An operator, administrator or employee of a hospital may not be appointed as a health care agent by any person who, at the time of the appointment, is a patient or resident of, or has applied for admission to, such hospital.
- The restriction in paragraph (a) of this subdivision shall not apply to:
(i) an operator, administrator or employee of a hospital who is related to the principal by blood, marriage or adoption; or
(ii) a physician, subject to the limitation set forth in paragraph (c) of this subdivision, except that no physician affiliated with a mental hygiene facility or a psychiatric unit of a general hospital may serve as agent for a principal residing in or being treated by such facility or unit unless the physician is related to the principal by blood, marriage or adoption.
- If a physician is appointed agent, the physician shall not act as the patient's attending physician after the authority under the health care proxy commences, unless the physician declines the appointment as agent at or before such time.
- No person who is not the spouse, child, parent, brother, sister or grandparent of the principal, or is the issue of, or married to, such person, shall be appointed as a health care agent if, at the time of appointment, he or she is presently appointed health care agent for ten principals.
New York Statutes, Consolidated Laws, Public Health, Ch. 45, Sections 2981.
Notary: There is no express provision in the New York statutes requiring that the naming of a health care proxy be notarized; however, it is highly recommended that your document be notarized to ensure that it is accepted by medical personnel in an emergency situation;
Must health care agent sign form? No requirement that health care agent sign form;
New York Statutes containing health care proxy requirements: Consolidated Laws, Public Health, Ch. 45, Sections 2980 through 2992.
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