A Health Care Proxy is one of the most important — and most misunderstood — documents in any New York estate plan. It is the instrument that lets you name a trusted person to make medical decisions for you if you cannot speak for yourself. At Morgan Legal Group, we treat the proxy not as a fill-in-the-blank form, but as the foundation of a fiduciary relationship: the moment you sign one, you are appointing an agent who will owe you binding legal and ethical duties.
This page is written for two audiences. First, for New Yorkers — across New York City, Long Island, Westchester, the Hudson Valley, and Upstate — who are deciding whom to name and how to do it correctly. Second, and just as importantly, for the agents themselves: the spouses, adult children, siblings, and friends who accept this role often without understanding the recordkeeping, decision-making, and good-faith obligations it carries. Our emphasis throughout is on those obligations, because a proxy is only as protective as the agent’s diligence in honoring it.
One sentence that prevents most New York mistakes: A Health Care Proxy is a separate document from a financial Power of Attorney. A financial POA — even a fully durable one under GOL §5-1513 — does not authorize your agent to make medical decisions. You need both.
Why the Health Care Proxy and the Financial POA Are Two Different Documents
New York deliberately splits authority over your money from authority over your body, and it does so through two separate legal regimes.
Your financial authority is governed by the General Obligations Law. The Statutory Short Form Power of Attorney under GOL §5-1513 — substantially amended effective June 13, 2021 — lets an agent handle banking, real estate, taxes, and benefits. That document is durable by default under New York law: it stays effective even if you become incapacitated unless the form expressly says otherwise. (Compare our pages on the durable POA and the springing POA for the timing options.)
Your medical authority is governed by the Public Health Law’s Health Care Proxy provisions — an entirely different statute. The agent you name in your proxy can consent to or refuse treatment, choose providers and facilities, and access your medical records, but only after a physician determines you lack capacity to make the decision yourself.
The two documents do not overlap, and one cannot substitute for the other:
| Feature | Financial Power of Attorney | Health Care Proxy |
|---|---|---|
| Governing law | NY General Obligations Law §5-1513 | NY Public Health Law (Health Care Proxy) |
| What the agent decides | Banking, property, taxes, benefits | Medical treatment, providers, records |
| When it works | Durable by default — survives incapacity | Activates only when a physician finds you lack capacity |
| Witnesses to sign | Two disinterested witnesses + notarization | Two adult witnesses (no notary required) |
| Gifting power | Up to $5,000/year without special modification | Not applicable |
| Can one cover the other? | No — does not reach health care | No — does not reach money or property |
Because clients so often assume one form does everything, we build estate plans that include both, executed correctly, so there is no gap on the day a hospital actually asks “who decides?” See our POA overview for how these documents fit together.
Who You Are Really Appointing: The Health Care Agent as a Fiduciary
When you sign a Health Care Proxy, you are not merely listing an emergency contact. You are designating a fiduciary — a person the law holds to heightened standards of loyalty, care, and good faith. Understanding those standards is the difference between a proxy that protects you and one that invites conflict.
The agent’s core legal duties
A New York health care agent must:
- Follow your known wishes. The agent’s first obligation is to decide as you would decide — honoring your stated preferences about life-sustaining treatment, pain management, and care goals. A proxy is a delegation of your voice, not a grant of the agent’s own preferences.
- Apply substituted judgment, then best interests. If your specific wishes are unknown, the agent must reason from your values and beliefs (substituted judgment). Only when even those cannot be ascertained may the agent fall back on a good-faith “best interests” determination.
- Decide in good faith. Every decision must be made honestly, for your benefit, free of self-dealing or outside pressure from family members, providers, or anyone who stands to gain.
- Stay informed. A fiduciary cannot decide blindly. The agent has the right — and the practical duty — to obtain your medical information, ask questions, and understand the diagnosis, prognosis, and options before consenting to or refusing treatment.
- Act only within scope and only when activated. The agent’s authority begins when a physician determines you lack capacity, and it is bounded by any limits you wrote into the proxy. Wishes about artificial nutrition and hydration, in particular, must be reasonably known to the agent for the agent to make those specific decisions.
Recordkeeping: the professional standard we coach every agent to meet
Although New York’s proxy statute does not impose a formal accounting like a financial POA might, the practical reality is that a diligent agent keeps records. We coach the agents in our clients’ plans to maintain a simple, contemporaneous file:
- Copies of the signed proxy and any revocations or replacements.
- A running note of capacity determinations — which physician, what date, what finding.
- A log of major treatment decisions, the medical information relied on, and the reasoning (especially how it tracked the principal’s known wishes).
- Names and contact details for treating physicians and the facility.
This is not bureaucracy for its own sake. Good recordkeeping is the single best protection an honest agent has if a decision is later questioned by another family member, and it is the clearest evidence that the agent honored the principal rather than substituting their own judgment.
Abuse Safeguards: How New York Protects the Principal
A fiduciary appointment is also a point of vulnerability, and New York law builds in safeguards that every principal and agent should understand.
- Capacity gate. The agent has no authority while you retain capacity. Your right to make your own decisions is paramount, and the proxy lies dormant until a physician certifies otherwise. The moment you regain capacity, control returns to you.
- Disinterested witnessing at signing. The proxy must be signed in front of two adult witnesses, and the person you name as agent may not serve as one of those witnesses. This mirrors the disinterested-witness logic New York uses elsewhere — including the two disinterested witnesses required to execute a financial POA under GOL §5-1513, where a witness may not be the named agent or a permissible gift recipient.
- Easy revocation. You may revoke a Health Care Proxy at any time and in several ways — by a written revocation, by executing a new proxy, by telling your physician, or by any clear act showing intent to revoke. Capacity to revoke is judged generously: even a person who lacks capacity for complex decisions may still effectively revoke. Our revoking a POA page explains the parallel rules on the financial side.
- Built-in conflict checks. If a provider or family member believes the agent is acting in bad faith or against your wishes, New York’s framework allows the decision to be challenged, and certain decisions (such as those involving life-sustaining treatment where your wishes are unknown) carry their own evidentiary requirements.
These guardrails are why naming the right agent — and naming a clearly identified alternate — matters as much as the form itself. The strongest safeguard against abuse is choosing a person whose loyalty and judgment you trust without reservation.
Executing a Valid New York Health Care Proxy
A proxy is only protective if it is executed correctly. New York’s requirements are straightforward but unforgiving:
- You must be an adult with capacity to understand the nature and consequences of appointing an agent.
- Sign and date the proxy yourself (or direct another to sign in your presence if you physically cannot).
- Two adult witnesses must sign, attesting that you appeared to act willingly and free of duress. The person you name as your agent cannot be a witness.
- No notary is required for the proxy itself — a key difference from a financial POA, which must be acknowledged before a notary like a real-property conveyance.
- Name an alternate agent. If your first choice is unavailable, unwilling, or unreachable, the alternate steps in seamlessly. Plans that name only one agent fail at the worst possible moment.
We always recommend pairing your proxy with a clear statement of your wishes — sometimes through accompanying directive language — so your agent is never forced to guess. Because the proxy and the financial POA are signed together in most plans, we make sure each meets its own execution standard: two witnesses for the proxy; two witnesses plus notarization for the GOL §5-1513 financial form.
How the Financial POA’s 2021 Rules Affect the Same Plan
Clients frequently sign their proxy and their financial POA in one sitting, so it helps to know how the financial side changed. The June 13, 2021 amendments to GOL §5-1513 modernized New York’s Statutory Short Form. Key points your planner should confirm:
- Substantial conformity replaced exact wording. A POA that substantially conforms to the statutory language is valid, which reduced the rejections that used to plague otherwise-proper documents.
- A good-faith safe harbor for third parties. Banks and other institutions that accept a conforming POA in good faith receive statutory protection — a major reason financial institutions now honor properly drafted forms.
- Gifting lives in the Modifications section. An agent may make gifts up to $5,000 aggregate per year without special language. Larger gifts, or gifts to the agent personally, require an express grant in the Modifications section. The old separate Statutory Gifts Rider was eliminated.
None of this touches your Health Care Proxy — but it underscores the theme of this page: in New York, financial fiduciary authority and medical fiduciary authority are two separate, carefully regulated grants. For the full statutory walkthrough, see our New York POA law guide.
Frequently Asked Questions
Does my financial Power of Attorney let my agent make medical decisions?
No. A financial POA under GOL §5-1513 covers money, property, and benefits — never health care. Medical decision-making authority comes only from a separate Health Care Proxy governed by the Public Health Law. To be fully protected, most New Yorkers need both documents.
Does a New York Health Care Proxy have to be notarized?
No. Unlike the financial POA — which must be acknowledged before a notary, like a real-property deed — a Health Care Proxy requires only your signature and the signatures of two adult witnesses. The person you name as your health care agent cannot be one of those witnesses.
When does my health care agent’s authority actually begin?
Only after a physician determines that you lack the capacity to make a particular medical decision yourself. Until that point, you remain fully in control. If you later regain capacity, decision-making authority returns to you immediately.
Can I change my mind after signing a proxy?
Yes. You may revoke a Health Care Proxy at any time — by signing a new one, by a written revocation, by notifying your physician, or by any clear act showing intent to revoke. New York applies a generous standard to revocation. Our revoking a POA page covers the related financial-side rules.
What duties does my health care agent legally owe me?
Your agent is a fiduciary. They must follow your known wishes, apply your values where your specific wishes are unknown (substituted judgment), act in good faith and free of self-interest, stay medically informed, and act only within the scope you granted once your incapacity is established.
Talk to a New York Estate Planning Attorney
Whether you are choosing an agent, accepting the responsibility of serving as one, or coordinating a Health Care Proxy with a durable financial POA, the details decide whether the documents work when they are needed. Attorney Russel Morgan, Esq. and the team at Morgan Legal Group prepare fiduciary-grade plans for clients across New York State.
Schedule a 30-minute consultation with Russel Morgan, Esq. »
Further reading from Morgan Legal Group: power of attorney in New York.