Estate Planning: The Healthcare Proxy

Healthcare proxy laws in New York and Florida allow you to designate someone you trust, such as a close friend or member of your family, to make healthcare decisions for you if you become incapacitated and cannot make those decisions for yourself. Situations that may require a proxy include:

  • Being in a coma due to illness or trauma
  • A persistent vegetative state
  • Suffering from a form of dementia such as Alzheimer’s
  • Something unexpected happening when you are under general anesthesia

You can give your agent a wide ability to make practically any healthcare decision for you or limit their authority by specifying which decisions you would like them to make. In New York,  Section 2982 of the PHL specifies that your agent must always act in accordance with your wishes or, if they are not known in a particular instance, in accordance with your interests.

Your healthcare agent may also make decisions about tissue and/or organ donations after your death, but only in accordance with your instructions on the healthcare proxy form.

Who May Serve as a Healthcare Proxy?

You may appoint anyone over the age of 18 to be your agent. Before doing so, talk to that person to confirm that they are comfortable with assuming the responsibility. If they are, discuss your healthcare wishes with them and give them a copy of a Healthcare Proxy form prepared in accordance with statutory guidelines. This form must be signed by you and two adult witnesses, neither of whom can be your agent.

What if You Don’t Have a Proxy?

If a person becomes incapacitated without having first designated a healthcare agent, the court may have to appoint a guardian to make these decisions. Even if that person is a family member, they may not be as familiar with your care wishes as someone you specifically appointed.

Points to Remember

When arranging for a healthcare proxy, there are important considerations. They include:

  • If you name a doctor as your healthcare agent, they can no longer serve as your attending physician, as they are prohibited from serving both roles.
  • If you have named your spouse and you later divorce or legally separate, he or she can no longer be your agent unless you specifically state otherwise.
  • If you live in a care home or are a long-term resident of a hospital, there may be regulations regarding any staff members serving as your proxy.

By appointing a healthcare proxy, you can rest assured that your medical team and care providers are always following your wishes, as your agent’s decisions must legally be treated as if they were your own.

If you would like to include a healthcare proxy arrangement in your estate plan, contact Rosen Law LLC. Our estate planning team will discuss your options, advise you of any potential issues with your preferred arrangement, and assist you in drawing up the necessary documentation. To speak with an experienced estate planning attorney in New York or Florida, please call (516) 437-3400.

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