Healthcare proxies — why do you need them?

A healthcare proxy allows you to communicate your end-of-life choices if you cannot speak for yourself. It is important to create a healthcare proxy before a crisis hits. If you receive a dire medical diagnosis, the last thing you want to be thinking about is addressing these documents.

It will allow you to appoint another person (whether family member or friend) to make healthcare decisions for you if you are no longer able to communicate with doctors, or lack the capacity to make decisions. In the absence of a proxy, the statutory law in New York provides for a hierarchy of persons who make medical decisions for another person. The first is a spouse, and then a child — without specifying which child, which can lead to ambiguity with adult children who don’t get along or agree.

We like to have clients prepare healthcare proxies for their children under the age of 18, who by definition “lack capacity” to make their own decisions. In the parents’ absence, or incapacity, parents can appoint another person to make medical decisions for that child.

Even if a person lacks healthcare decision-making capacity, he can still designate a healthcare agent and sign a proxy if he is “competent.” According to Public Health Law 2981.1, every adult is “presumed competent” to appoint a healthcare agent unless determined incompetent by a court.

The requisite “competence” standard for making the proxy is different from the standard of “capacity to make healthcare decisions.” “Capacity” in that context means “the ability to understand and appreciate the nature and consequences of healthcare decisions, including the benefits and risks of and alternatives to any proposed healthcare, and to reach an informed decision.”

What this means is that a person who cannot make his own medical decisions because he cannot process the information and make reasoned decisions, can still grasp that he is appointing someone to make those complex decisions.

Advance directives such as healthcare proxies and powers of attorneys are intended to avoid the need for a guardianship proceeding under the law of Mental Hygiene Law Article 81. A proceeding is costly and time consuming, not to mention emotionally burdensome for going through the process of asserting that a loved one lacks competence. This often angers the person over whom a guardianship is sought, and causes strife among adult children of that person or other family members. That said, a guardianship proceeding is sometimes still necessary, as where a person has signed conflicting documents or is believed to have been susceptible to undue influence.

Another complication can arise where there is a guardianship in place but a person executes a healthcare proxy. Decisions by a healthcare agent take priority over decisions by any other person. Nor does an Article 81 guardian have the authority to revoke a designation of an agent. The written designation of an agent is presumed valid, and the person making it is presumed to have had the requisite competence. Court intervention is required to revoke the designation.

New York State does not recognize the designation of “co-agents” on a healthcare proxy. Policy dictates that only one person be imbued with decision-making authority. To do otherwise imposes risks on the health of a person who is in need of clear direction to medical personnel. A person may designate an “alternate” or successor agent, but the law is clear on the appointment of a single agent.

A healthcare agent’s authority is not triggered unless and until the person lacks decision-making capacity. The agent may not supersede the principal’s own decision making simply because they’ve been appointed as agent. The physician may only take direction from the patient and no one else when the patient is able to communicate.

The agent’s authority is not unfettered. An agent cannot override a decision already made by a patient. If a patient has communicated a “do not resuscitate” order to a physician and later loses capacity, in general, the agent cannot change plans.

An agent also cannot limit visitation to the patient, although in circumstances where a client is concerned about strife among family members, or unwanted persons coming to visit, language to that effect can be included to persuade the medical facility that the patient would exclude those persons if she were able to do so.

A healthcare proxy is a brief document but can still be fraught with potential for conflict and complexity. It is important to consult an attorney to answer questions you may have regarding the implementation of a proxy in various contexts.

Alison Arden Besunder is the founding attorney of the law firm of Arden Besunder P.C., where she assists new and not-so-new parents with their estate planning needs. Visit her website at