Filing a Health Care Proxy in the Medical Record

Any health care provider who is given a proxy must arrange for the document, or a copy of the document, to be put in the patient's medical record. Health care providers do not need to see or file the original, signed proxy document.

Any physician who learns of a revocation must immediately record the revocation in the patient's medical record and inform the agent and the medical staff responsible for the patient's care. Any health care professional who learns that a proxy has been revoked must immediately inform a physician.

Must individuals use the health care proxy form prepared by the Department of Health?

No. There is no mandatory form, but certain information must be included in every health care proxy. (See box on p. 6)

Must Patients consult a lawyer to create a health care proxy?

No. But patients should be encouraged to read instructions carefully before filling out and signing a health care proxy. The proxy instructions prepared by the Department of Health suggest that patients ask health care professionals for information about treatment decisions when creating a proxy. Patients may need specific information about their medical condition or may want more general information about life–sustaining or other treatments.

If neither the agent nor the alternate agent is available to make decisions, should health care professionals follow instructions written on a Proxy form?

The Proxy Law does not apply if neither the agent nor the alternate agent is available. However, written instructions on a health care proxy can provide clear and convincing evidence of a patient's wishes. Clear and convincing evidence of a patient's wishes provided in a health care proxy, a living will or other manner should be honored to the same extent as treatment decisions by a competent patient.

Are agents protected from liability?

Individuals serving as agents are protected from civil and criminal liability for making health care decisions in good faith.

Are agents responsible for the cost of health care when they provide consent?

No, unless the agent is otherwise liable for the cost of care because of the agent's legal relationship to the patient. Liability for the cost of health care provided according to an agent's decisions is the same as if the patient had decided about treatment.

Must health care proxies or durable powers of attorney for health care from other states be honored?

If a health care proxy or similar legal document from another state or country complies with the laws of that state or country, it is valid under the Proxy Law and must be honored.

Can a health care agent be appointed by using a durable Power of attorney that meets the requirements of New York's durable Power of attorney law?

Only if the power of attorney was signed prior to July 1, 1990. After that date, if individuals appoint a health care agent by using a form or other writing that also includes a power of attorney dealing with matters other than health care, the appointment of the health care agent is not valid. However, if the power of attorney includes a statement of treatment wishes, the statement may provide clear and convincing evidence of the patient's wishes.

Is a health care proxy valid if it was signed before January 18, 1991, the effective date of the law?

Yes.

Must the Proxy form be notarized?

No.

Can an employee of a health care facility appoint a co–worker as an agent even if it is likely that the employee will be I treated at the facility when he or she becomes ill?

Yes, as long as the proxy is signed before the employee applies for admission or is admitted to the facility to receive care.

Can a volunteer for a health care facility serve as agent for a patient at the facility?

Yes.

Can a physician who is also an administrator or medical director of a hospital or nursing home serve as agent for a patient treated at the facility?

Only if the physician is related to the patient or was appointed prior to the patient's admission, or application for admission, to the facility.

Must the agent live in New York State?

No.

Are there special procedures that must be followed when patients with health care proxies are transferred to another facility?

No, the proxy remains valid. Health care facilities should develop policies to inform ambulance personnel and receiving facilities that a patient has a proxy, and to provide such personnel with a copy of the proxy.

Must facilities honor health care proxies created while the patient was at another facility or at home?

Yes.

Who can serve as witness when a proxy is signed?

In general, any adult except the agent or alternate agent can serve as witness. The witnesses must have special qualifications when a proxy is signed by residents in a mental health facility.