Health Care Proxy & The Guardianship Process
New York law provides that a person can sign a Health Care Proxy and appoint another person to make health care decisions in the event they become unable to make decisions for themself. New York Estate Lawyers are familiar with Article 29-C of the New York Public Health Law ("PHL") which contains the provisions regarding Health Care Proxies. This statute is entitled "Health Care Agents and Proxies" and begins with Section 2980 of the PHL.
Section 2981 of the PHL provides that an adult who is competent can appoint someone as his health care agent by using a Health Care Proxy that he signs and dates which is witnessed in the presence of two witnesses who are adults who also need to sign the proxy. An example of a form of Health Care Proxy is contained in the statute.
Your agent can be given the broad ability to make most any health care decision for you or you can limit the agent’s authority by specifying the types of decisions you would like the agent to make on your behalf. Section 2982 of the PHL provides that when an agent is making decisions the agent must act in accordance with the principal's wishes which includes their moral and religious beliefs or, if not known, in accordance with their best interests.
I have represented many individuals in connection with the preparation and execution of a Health Care Proxy. These proxies are an important part of a person's overall estate plan. I work closely with my clients in connection with developing and implementing all aspects of their plan.
The New York statute provides specific guidelines regarding health care proxies. It is essential that a person prepare and sign a Health Care Proxy in accordance with the statutory guidelines. It is also essential that a person select a health care agent who will implement the care decisions in accordance with a person's desires.
In the event a person becomes incapacitated and has not signed a Health Care Proxy, it may be necessary to have the Court appoint a Guardian to make these decisions. As a New York Guardianship Lawyer, I explain to clients that Guardianship proceedings in New York require a formal hearing in Court. The Court appointed Guardian, even if a family member, may not be as familiar with a person's health care desires as would someone appointed in a Health Care Proxy.
If a person had executed a Health Care Proxy prior to their incapacity, appointment of a Guardian by a Court may be avoided. Additionally, a Health Care Proxy allows a person to select their health care agent rather than have a Court name a Guardian who the incapacitated person may not have chosen if given the opportunity.
If you have a question regarding a Health Care Proxy or Guardianship matter, call me for a free review.
I graduated in the top 10% of my class at The New England School of Law in Boston and served on the prestigious “Law Review.” I have also served on the staff of a NYC Councilperson and NYS Assemblyman.
You can contact me by phone at (212) 355-2575 or fill out my contact form.