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New York Advance Directive

New York Advance Directive

By 

Jennifer Mcgee

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Updated on  

November 22, 2022
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8 Mins

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When a person chooses to make a Living Will, along with the Medical Power of Attorney, these two legal documents become an Advance Directive. 

An Advance Directive may include your sign, names of witnesses, their signatures, etc. in adherence to your state’s requirements. Every state has different requirements to be followed. Some states ask for witnesses and notaries, others look for different criteria to be followed. 

Likewise, some states consider Living Will and Advance Directive as different and separate documents, whereas others consider both documents the same. In some states, Living Will and Advance Directive are used interchangeably. 

In this article, you will get a complete guide for making an Advance Directive for Healthcare in New York.  

Legal Requirements for a valid Advance Directive

  • Written by the grantor/declarant (i.e. the maker of an Advance Directive): Yes
  • Grantor must be:
  • Above the age of 18 years: Yes
  • Sound mind and memory: Yes
  • Signed by the grantor: Yes
  • Signed by Proxy/Agent: No
  • Proxy/agent accepts his role in writing: No
  • Witness required: Yes
  • Number of witnesses: 2
  • Signed by the witnesses: Yes
  • Number of documents required: 1 
  • Other names for a Living Will in New York: Living Will
  • Other names for a Healthcare Power of attorney in New York: Health Care Proxy
  • Proxy can decide on mental health issues: No

Who can be your witnesses in the New York Advance Directive?

Anyone can be your witness in New York if:

  • He is an adult i.e., above 18 years of age, &
  • He is a sound-minded person which means that he can understand the consequences of making an Advance Directive and the laws applied to it.

Note: Your witnesses cannot be your healthcare proxy/agent.

Advance Directive New York

Who can be your Proxy in the New York Advance Directive?

Anyone can be your Proxy/Agent in New York if:

  • He is an adult i.e., above 18 years of age, and
  • He is a sound-minded person which means that he can understand the consequences of making an Advance Directive and the laws applied to it.

Your Proxy/Agent cannot be:

  • Your supervising health care provider/nurse practitioner,
  • The operator, administrator, or an employee of a healthcare facility where you’re receiving care.
  • A person who is already an agent for ten or more people.

Unless: 

  • That person is related to you by blood, adoption, or marriage i.e. your spouse, parent, child, grandparent, sibling, or grandchild.

Other than the above legal requirements, the Proxy/Agent should be:

  • Trustable to adhere to your wishes and intentions.
  • Trustable to defend you if there’s any disagreement about your medical care.
  • He wanted to be your Attorney in Fact of his own free will to take care of your health affairs.
  •  He should not be your doctor or one of the caretakers.

Note: You can appoint an Alternate Proxy as well. The alternative Proxy/Agent will step in if the first person you name as a proxy is unable, unwilling, or unavailable to act for you or if you decide to revoke his authority.

Notarization required for New York Advance Directive?

In New York, notarization of your Advance Directive is not mandatory.

New York state laws don’t require the grantor to sign the form in the presence of  witnesses if he fills only Part 2 of the form i.e. the Living Will. 

However, if he fills out Part 1 and 2 both, it must be witnessed and signed. It is advisable to sign your Advance Directive before two witnesses as it may be used as evidence in future. 

Learn about the requirements of New York Last Will and Testament and  New York Last Will and Testament Template.

When does an Advance Directive come into effect in New York?

In New York, an Advance Directive becomes legally valid but doesn’t come into effect on signing the form by the grantor, proxy, and witnesses. 

An Advance directive comes into effect only when the doctor declares that you are incapable of deciding on your own and have become debilitated due to illness or injury.

Note: Your New York Advance Directive will not be effective in any medical crisis or emergency. Ambulance and hospital emergency department personnel are required to provide cardiopulmonary resuscitation (CPR) unless they are given a separate directive that states otherwise.

How can an Advance Directive be revoked?

You can revoke or terminate your New York Advance Directive at anytime in any way, for instance by:

  • A written revocation.
  • An oral revocation,
  • Tearing, burning, and obliterating or destroying the document in any other way,
  • Executing a new Advance Directive.

Note: Your revocation to be effective must be communicated to your supervising health-care provider, treating physician, and your agent.

How to amend or change an Advance Directive? 

You can make changes or amend your Advance Directive at any time in New York but once it was witnessed and signed you have to remake a new document with the required changes. It is recommended to go through, double-check, and make sure of everything before signing the Advance Directive.

Parts of the New York Advance Directive Form

Part 1: Appointment of Healthcare Agent

You can fill this form out and provide all the details. The appointment of the Healthcare Proxy/Agent and his details will be filled along with the instructions for the Proxy/Agent to follow.

On the left side, you will find a gray box that contains all the instructions that will help you in the application process. 

New York Advance Directive Sample Form

PART 1: HEALTH-CARE PROXY


I, _________________________________________, hereby appoint: (name) ____________________________________________________________ (name, home address and telephone number of agent) ____________________________________________________________ as my health care agent. In the event that the person I name above is unable, unwilling, or reasonably unavailable to act as my agent, I hereby appoint ____________________________________________________________ (name, home address and telephone number of agent) ____________________________________________________________ as my health care agent. 


This health care proxy shall take effect in the event I become unable to make my own health care decisions.

Part 2: Treatment Preferences (Living Will)

This section states your wishes regarding medical care when your doctor determines that either: 

  • that you are terminally ill and to prolong artificially your life you would need artificial life-sustaining procedures or your death will occur with or without the use of life-sustaining procedures, or 
  • that you are in a persistent vegetative state.

New York Advance Directive Sample Form

PART 2: LIVING WILL


I, _______________________________________________, being of sound mind, make this statement as a directive to be followed if I become unable to participate in decisions regarding my medical care. These instructions reflect my firm and settled commitment to regarding health care under the circumstances indicated below:


[ ] (a) Choice NOT To Prolong Life

While I understand that I am not legally required to be specific about future treatments if I am in the condition(s) described above I feel especially strongly about the following forms of treatment: 


[ ] I do not want cardiac resuscitation. 

[ ] I do not want mechanical respiration. 

[ ] I do not want artificial nutrition and hydration. 

[ ] I do not want antibiotics.


OR


[ ] (b) Choice To Prolong Life I want my life to be prolonged as long as possible within the limits of generally accepted health care standards


Organ Donation Choices (OPTIONAL) 


Upon my death: (initial only one applicable box) 


[ ] (a) I do not give any of my organs, tissues, or parts and do not want my agent, guardian, or family to make a donation on my behalf; 

[ ] (b) I give any needed organs, tissues, or parts; 

OR 

[ ] (c) I give the following organs, tissues, or parts only: ______ ______ ______ 


My gift, if I have made one, is for the following purposes: (strike any of the following you do not want) (1) Transplant 

(2) Therapy 

(3) Research 

(4) Education.

Part 3: Execution

You must sign in the presence of two witnesses. The details of the witnesses along with their signs are also required

New York Advance Directive Sample Form

PART 3 : EXECUTION


Signed ________________________________________Date_________ Print Name Address ____________________________________________________ ____________________________________________________ 


I declare that the person who signed this document appeared to execute the living will willingly and free from duress. He or she signed (or asked another to sign for him or her) this document in my presence.


Witness #1 Signature: Print name: Address: 

Witness #2 Signature: Print name: Address: 

Give photocopies of the signed original to your agent and alternate agent, doctor(s), family, close friends, clergy, and anyone else who might become involved in your health care. If you enter a nursing home or hospital, have photocopies of your document placed in your medical records. 

Be sure to talk to your agent(s), doctor(s), clergy, family, and friends about your wishes concerning medical treatment. Discuss your wishes with them often, particularly if your medical condition changes.

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Frequently Asked Questions

What is an Advance Healthcare Directive New York?

An Advance Directive is a legal-written document about your future medical care. It is a gift to family members and friends so that they won't have to guess what you want if you no longer can speak for yourself.

Does an attorney have to draft an advance directive in New York?

The procedure of creating advance directives is simple, you do not require an attorney though you may choose to consult one. However, an advance directive either it is written or oral needs to be witnessed by two individuals.

Who makes medical decisions if you are incapacitated in New York?

Under New York law, incapacity means when a physician declares that the individual can longer give informed consent. Any person may designate someone to make health care decisions on their behalf should they become incapacitated in New York.

What are the 2 major challenges with advance directives?

Advance directives have limitations. For example, an older adult may not fully understand treatment options or recognize the consequences of certain choices in the future. Sometimes, people change their minds after expressing advance directives and forget to inform others.

How do I get a medical power of attorney in New York?

It is the same as creating a document of Advance Directive. Firstly, choose Your Surrogate/Acting Agent, be specific on what decisions your Power of Attorney can make for you, and fill out your New York Medical Power of Attorney Form. Lastly, sign your document before subscribing to witnesses and a Notary Public.
Jennifer Mcgee
Parent to five young children. Expert in Estate Planning, Probate, and Family Law Matters. Volunteer with Victim’s Advocates in the local sheriff's department...
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Got Questions?

Hi, I’m Jennifer McGee.

Co-founder & Head of Legal at TrulyWill

Feel free to book a call with me to help you with your estate plan.

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