NEW YORK LIVING WILL & HEALTH CARE PROXY
(Advance Health-Care Directive)
[// GUIDANCE: This integrated template combines (i) a statutory Health Care Proxy under N.Y. Pub. Health Law Art. 29-C and (ii) a Living Will setting forth end-of-life instructions. Practitioners may detach or revise either component as client objectives dictate.]
TABLE OF CONTENTS
I. Document Header
II. Definitions
III. Operative Provisions
A. Appointment of Health Care Agent
B. Alternate Agent
C. Scope of Authority & Limitations
D. Statement of Treatment Preferences (Living Will)
E. Organ & Tissue Donation (Optional)
F. HIPAA Authorization
IV. Representations & Warranties
V. Covenants & Restrictions (Agent Duties)
VI. Revocation, Replacement & Remedies
VII. Risk Allocation & Provider Immunity
VIII. Governing Law & Dispute Resolution
IX. General Provisions
X. Execution Block (Signatures, Witness Attestation)
I. DOCUMENT HEADER
1.1 Title. New York Living Will & Health Care Proxy (Advance Health-Care Directive) (this “Directive”).
1.2 Parties.
(a) Principal: [PRINCIPAL LEGAL NAME], residing at [ADDRESS] (“Principal”).
(b) Health Care Agent: [PRIMARY AGENT LEGAL NAME], residing at [ADDRESS] (“Agent”).
1.3 Effective Date. This Directive shall become effective on the date executed by Principal (the “Effective Date”) and shall remain in effect until revoked pursuant to Section VI.
1.4 Governing Law. This Directive is governed by and shall be construed in accordance with the laws of the State of New York, specifically N.Y. Pub. Health Law §§ 2980–2994 (the “Health Care Proxy Law”).
II. DEFINITIONS [// GUIDANCE: Delete or add defined terms to match client drafting.]
“Artificial Nutrition and Hydration” means medically administered food and fluids, including tube feeding and IV fluids.
“Capacity” means the ability to understand and appreciate the nature and consequences of health-care decisions and to reach an informed decision.
“End-Stage Condition” means an irreversible or incurable condition that, in reasonable medical judgment, will result in death within a relatively short time regardless of the application of life-sustaining treatment.
“Life-Sustaining Treatment” means any medical procedure, device, or medication that prolongs life by sustaining vital functions and that is not primarily intended to relieve pain.
III. OPERATIVE PROVISIONS
A. Appointment of Health Care Agent
3.1 Pursuant to N.Y. Pub. Health Law § 2981, Principal designates Agent to make any and all health-care decisions on Principal’s behalf if the attending physician determines that Principal has lost Capacity.
3.2 Agent’s decision-making authority includes, without limitation, the authority to consent to or refuse any treatment, service, or diagnostic procedure, to employ or discharge health-care providers, and to have access to Principal’s medical information.
B. Alternate Agent
3.3 Alternate Agent: [ALTERNATE AGENT LEGAL NAME], residing at [ADDRESS] (“Alternate Agent”), shall serve if the Agent is unavailable, unwilling, or disqualified.
C. Scope of Authority & Limitations
3.4 Agent shall act consistently with any instructions in this Directive and in the best interests of Principal, consulting available medical information and considering Principal’s personal values.
3.5 Limitations (check or complete as applicable):
☐ Agent may not authorize the withdrawal of Artificial Nutrition and Hydration.
☐ Agent may not admit Principal to a psychiatric facility.
☐ Other limitations: [INSERT OR “None”].
D. Statement of Treatment Preferences (Living Will)
3.6 If at any time Principal is in an End-Stage Condition or persistent vegetative state and lacks Capacity, the following expresses Principal’s wishes:
(a) Life-Sustaining Treatment
☐ I direct that life-sustaining treatment be withheld or withdrawn.
☐ I direct that life-sustaining treatment be provided.
[Additional narrative preferences:]
(b) Artificial Nutrition and Hydration
☐ Withhold/withdraw under circumstances described above.
☐ Continue regardless of condition.
(c) Pain Management
I request medication or other measures to alleviate pain, even if such measures may hasten death, consistent with professional standards.
(d) Other Instructions
[FREE-FORM TEXT].
E. Organ & Tissue Donation (Optional)
3.7 Upon death, Principal ☐ does ☐ does not authorize the donation of organs and tissues for transplantation, therapy, research, or education. Limitations: [TEXT].
F. HIPAA Authorization
3.8 Agent and Alternate Agent are “personal representatives” under 45 C.F.R. § 164.502(g) and may obtain, use, and disclose Principal’s protected health information to carry out their duties.
IV. REPRESENTATIONS & WARRANTIES
4.1 Principal represents that:
(a) Principal is at least eighteen (18) years old, is of sound mind, and is acting voluntarily.
(b) No undue influence or duress has been exerted in connection with this Directive.
4.2 Each Witness (defined in Section X) warrants that he or she is competent, over eighteen (18), and not the Agent, Alternate Agent, or attending health-care provider.
V. COVENANTS & RESTRICTIONS (Agent Duties)
5.1 Agent shall:
(a) Act in good faith, in Principal’s best interests, and consistent with known wishes;
(b) Consult health-care professionals as reasonably necessary;
(c) Keep reasonably contemporaneous records of significant decisions; and
(d) Avoid conflicts of interest that could impair impartial judgment.
5.2 Agent shall not transfer or otherwise delegate authority except to Alternate Agent in accordance with Section III.B.
VI. REVOCATION, REPLACEMENT & REMEDIES
6.1 Principal may revoke this Directive at any time by:
(a) A written revocation signed and dated by Principal;
(b) An oral statement of intent to revoke in the presence of a witness;
(c) Execution of a subsequent directive; or
(d) Physical destruction of this Directive by Principal or by another at Principal’s direction.
6.2 Revocation becomes effective upon communication to the attending physician or health-care provider.
6.3 If Agent is removed or resigns, Alternate Agent succeeds automatically. If no agent is available, decisions shall be made pursuant to N.Y. Pub. Health Law § 2994-d (Family Health Care Decisions Act).
VII. RISK ALLOCATION & PROVIDER IMMUNITY
7.1 Good-Faith Reliance. Any physician or health-care facility acting in good faith reliance on this Directive or on the Agent’s instructions shall be immune from civil or criminal liability to the fullest extent permitted under N.Y. Pub. Health Law § 2986.
7.2 Indemnification. Principal agrees to indemnify and hold harmless any health-care provider who follows the Agent’s lawful directions in good faith. [// GUIDANCE: Providers often request express indemnification; delete if inconsistent with client objectives.]
VIII. GOVERNING LAW & DISPUTE RESOLUTION
8.1 This Directive shall be governed exclusively by New York law.
8.2 Any dispute concerning its interpretation or application shall be submitted to a court of competent jurisdiction in the State of New York. The parties acknowledge that injunctive relief may be sought to enforce health-care intentions in urgent circumstances.
[// GUIDANCE: Arbitration, jury waiver, and forum-selection provisions are generally unnecessary in advance directives and therefore omitted.]
IX. GENERAL PROVISIONS
9.1 Severability. If any provision is held unenforceable, the remainder shall continue in effect, and the invalid provision shall be reformed to the minimum extent necessary.
9.2 Copies. Photocopies and electronic copies of this Directive have the same legal effect as an original.
9.3 Entire Directive. This document, including any attachments expressly incorporated, constitutes the entire advance directive of Principal.
9.4 Amendment. Principal may amend this Directive in writing, signed, dated, and witnessed with the same formalities as the original execution.
X. EXECUTION BLOCK
IN WITNESS WHEREOF, Principal has executed this Directive on the Effective Date written below.
Principal
[PRINCIPAL LEGAL NAME] – Principal
Date: _________
Witness Attestation
We declare that the Principal is personally known to us, appears to be of sound mind, and signed or acknowledged this Directive in our presence. We are not the appointed Agent or Alternate Agent, and we are not attending health-care providers or employees thereof.
Witness #1
Name: [PRINT]
Address: [PRINT]
Date: _______
Witness #2
Name: [PRINT]
Address: [PRINT]
Date: _______
[OPTIONAL NOTARIZATION – Not required under NY law but may facilitate out-of-state recognition.]
[// GUIDANCE:
1. File copies with (i) medical records, (ii) Agent, (iii) close family.
2. Encourage client to discuss preferences with Agent and physicians.
3. Review periodically—best practice is every 2-3 years or after major life events.]