How to Create a Health Care Proxy and Living Will in New York (Steps for Families)

Any adult 18 or older in New York can complete a health care proxy form. It lets you name someone you trust (your health care agent) to make medical decisions on your behalf if you're unable to make them yourself.

If you're dealing with a hospital or nursing home, you don't have to track down the paperwork yourself. New York law requires hospitals and nursing homes to provide the health care proxy form along with instructions for completing it.

Your agent doesn't step in just because the form exists. Under New York's Health Care Proxy Law, your agent's authority kicks in only when your doctor determines you've lost the capacity to make decisions for yourself.

Signing Requirements

• ✓ Have two witnesses watch the principal sign the health care proxy form.
• ✓ Make sure both witnesses can say the principal appeared to sign willingly.
• ✓ Do not use the health care agent as a witness.
• ✓ Do not use the alternate agent as a witness.
• ✓ Skip notarization if you want. New York does not require the proxy form to be notarized.

A living will is where you put your health care wishes in writing, ahead of time. In New York, it should include at minimum: your name, the date, your statement of personal health care wishes, your signature, and two witnesses' signatures and dates. Each witness must also state that they saw you sign and that you appeared to do so willingly.

A health care proxy and a living will do different jobs, but they work well together. The proxy names the person who can speak for you. That authority only starts when a doctor determines you lack decision-making capacity. The living will gives your agent and medical team your written directions ahead of time, so no one is left guessing what you would have wanted.

A DNR is a specific order about CPR. If you need a non-hospital Do-Not-Resuscitate (DNR) order in New York, it must be recorded on state form DOH-3474 and signed by a doctor.

A MOLST (Medical Orders for Life-Sustaining Treatment) covers CPR and other life-sustaining treatments through a set of medical orders. In New York, a MOLST form must be completed by a health care professional and signed by a physician licensed in New York to be valid.

1. Confirm your loved one can sign. In New York, the person completing a health care proxy must be an adult age 18 or older.
2. Get the health care proxy form. Hospitals and nursing homes in New York are required to provide the form and information about creating a proxy.
3. Choose an agent and an alternate. Pick people who can be reached quickly and who will follow your loved one’s wishes.
4. Sign the health care proxy with the right witnesses. Two witnesses must watch the signature and attest it appeared to be made willingly. The agent and alternate agent cannot be witnesses, and notarization is not required.
5. Draft the living will with the minimum required content. Include the person’s name, date, statement of wishes, signature, and two witnesses’ signatures and dates with statements that the signature was made willingly.

• ✓ Keep a copy with the person who signed the documents (somewhere easy to find in an emergency).
• ✓ Give a copy to the health care agent and alternate agent.
• ✓ Provide copies to the hospital or nursing home, if your loved one is receiving care there (they are required to provide the proxy form and creation information, and they can also place copies in the medical record).
• ✓ If your family works with an attorney, keep a copy in that file.
• ✓ Keep an extra copy with a trusted family member who can show it quickly if the agent is traveling or unreachable.

If your loved one is incarcerated, keep paper copies of the health care proxy and living will somewhere you can grab them fast (not just on your phone). Check with the specific jail or prison about how they want advance directives provided or filed, since internal procedures vary from facility to facility. The key point stays the same: the health care proxy is a New York form any adult 18 or older can complete, so you want it ready the moment a medical decision has to be made.