What Is a Power of Attorney?
A power of attorney is a legal document. In a power of attorney, one person (the principal) gives another (the agent, also called the attorney-in-fact) the legal power to make decisions and act on the principal's behalf.
Unless an agent uses authority that the principal did not grant, the agent's acts and decisions are as binding on the principal as if the principal made them.
What Is a Health Care Proxy?
A health care proxy is a legal document that is the health care equivalent to a power of attorney. Some states have a similar document called a medical power of attorney or health care power of attorney.
Like a power of attorney, a health care proxy has a principal and an agent. An agent can make all your health care decisions for you when you do not have the capacity to make your own decisions.
A health care proxy can include your wishes and instructions for your care, and you can place limitations on the decisions your agent can make. However, you should be careful not to limit or instruct your agent too much because you should want them to have the flexibility to handle unforeseen circumstances. If you include a long list of instructions and limitations, it can cause confusion, delay, and possible disputes between your loved ones.
Your attending physician will determine whether you lack the capacity to make decisions. If you appointed a physician as your agent, they cannot make the capacity determination or serve as your attending physician. If the determination that you lack capacity is based on a mental health issue (as opposed to physical limitations like a coma), a psychiatrist must be involved in the determination.
New York law is careful to protect your rights as a patient. Even if a physician finds you are incapacitated, you can object to that determination or any health care decision by your agent unless a court has determined you lack capacity.
Unlike a health care proxy, New York's statutes do not describe how to make a living will. A living will is a document that tells your health care providers if you want life-prolonging measures, such as a ventilator or feeding tubes, when you have a terminal illness.
Even though New York law does not specifically describe living wills, you can include end-of-life instructions in your health care proxy form.
How To Get a New York Power of Attorney or Health Care Proxy
Because the health care proxy and power of attorney are similar documents, the steps to create them essentially are the same.
1. Decide which powers to give your agent
Carefully think about why and when you want an agent to act on your behalf. Following are some of the questions you should ask yourself before making a power of attorney or health care proxy:
- How broad or limited are the powers you want to give your agent?
- Do you want your agent to be able to act immediately or only when you are incapacitated?
- Do you want your agent's authority to cease when you cannot make decisions for yourself?
- Do you want your health care agent to make end-of-life decisions for you, or do you want to give end-of-life instructions?
Before June 13, 2021, your power of attorney form must include a statutory gifts rider if you want your agent to be able to make gifts above $500.
Beginning June 13, 2021, New York will allow gifts up to $5,000 and will no longer require a statutory gifts rider. If you want your agent to have the authority to exceed the $5,000 limit, you can fill out the gift modifications section of the power of attorney form to modify your agent's gift-making authority.
2. Choose your agent and successor agents
For both a health care proxy and power of attorney, you want to pick an agent whom you trust to follow your instructions and take actions with your best interests in mind.
You do not need to pick the same person in each document. You may have a friend who works in a financial industry who you trust to manage your finances, but you may have a family member who knows your personal feelings about health care. You could select the friend to be your agent under your power of attorney and your family member to be your health care agent.
For a power of attorney, you can select co-agents. Unless your power of attorney states they can act separately, the co-agents must act together.
3. Get a form
If you do not use an attorney to make a power of attorney, you can use a form. Make sure your form is up to date with current laws. We offer easy-to-use New York power of attorney and health care proxy forms.
June 13, 2021, is an important date for powers of attorney in New York. On that date, several changes are going into effect that will change what a form power of attorney must say. However, a form created before June 13, 2021, will still be valid after that date.
A New York power of attorney created before June 13, 2021, must contain the same wording as the statutory short form power of attorney in General Obligations Law section 5-1513. If it does not contain the exact wording, it will not be considered a statutory short form power of attorney. Beginning June 13, 2021, a power of attorney will be considered a statutory short form power of attorney if it “substantially conforms" to the statute's wording.
A non-statutory power of attorney is valid in New York. But, it has limitations discussed in the sections below about the types of powers of attorney and refusing an agent's authority.
Public Health Law section 2981 includes a form health care proxy, but it is not necessary to use that form. The health care proxy must identify the principal and agent and state that the agent can make health care decisions on the principal's behalf.
4. Fill out your form and sign it with the correct number of witnesses
When you fill out your form, make sure you follow the directions to ensure that you grant the authority you wish to grant. The power of attorney and health care proxy have slightly different rules for witnesses.
Power of Attorney
You must sign and date your power of attorney and have your signature acknowledged and notarized by a notary public. Unlike most states, New York requires an agent to sign the power of attorney and have their signature notarized for the power of attorney to be valid.
Beginning June 13, 2021, a principal can direct another person to sign and date a power of attorney on behalf of the principal if the principal is physically unable to sign and is present when the person signs. A signature by someone else on behalf of the principal must be acknowledged and notarized.
The effective date of a power of attorney is when a notary public acknowledges the agent's signature. If there are two or more co-agents, then the power of attorney is effective when all the agents have signed and had their signatures acknowledged.
Health Care Proxy
You must sign and date your health care proxy in the presence of two adult witnesses who must also sign it. If you are competent but physically unable to sign, another person can sign for you if you direct them to do so. If another person signs for you, two witnesses must be present.
Your agent under the health care proxy cannot be one of the two witnesses. If a principal resides in a mental health facility, there are additional rules about who can be a witness.
5. Deliver your power of attorney to the necessary people
After your power of attorney or health care proxy is properly signed, you should give copies to people who may need it.
You will want your agent to have either the original or a certified copy for a power of attorney. Some people or businesses may accept a photocopy, but they can demand an original or certified copy. You also should consider giving copies to any business or person you know your agent will deal with. This will make it more likely for them to accept your agent's authority without demanding more proof of the power of attorney's validity.
If your power of attorney is going to be used in a real estate transaction, you must file it with your county clerk's office.
Give copies of your health care proxy to your primary physician, your health care agent, and any hospitals or health care facilities where you will receive treatment.
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
