How Do I Choose a Health Care Agent?
A health care agent is the person you name to make medical decisions for you if you are unable to speak for yourself. Some states use a different name for a health care agent, such as “proxy,” “representative,” or “attorney in fact.” New York uses the term “agent.” You will name this person when you make your Health Care Proxy.
What Your Health Care Agent Can Do
If you can’t communicate because of a serious illness or injury, your health care agent is legally authorized to step in and carry out your wishes for medical care, making any necessary treatment decisions along the way. Your agent will have the sole legal authority to speak for you, taking into account all that he or she knows about your desires for treatment and your personal beliefs. Your agent is not required to consult family members before making decisions on your behalf, unless your Health Care Proxy explicitly requires that.
While some of your agent’s specific powers depend on state law, the person you name will always be permitted to:
- visit you in hospitals or other health care facilities
- oversee the treatment wishes you set out in other health care documents
- authorize necessary medical treatments, such as surgery, blood transfusions, or drugs
- review your medical records, and
- choose your doctors and other health care providers.
Your agent will be able to make critical end-of-life decisions as well -- for example, refusing to have you placed on a ventilator or having you removed from life support -- as long as those decisions in your best interest and based on your known wishes.
How to Choose Your Agent
There are three questions to answer when selecting your health care agent:
- Will the person be a responsible advocate for your health care wishes?
- Does he or she live close enough to be at your side quickly and to stay a long time, if needed?
- Does state law allow your choice to serve?
This section addresses each question in turn.
Trust and understanding. When selecting your agent, it’s most important to name someone you trust completely. Your agent should be someone who knows your beliefs and feelings about medical care, and who is capable of strongly asserting your wishes if necessary. It’s not necessary that your agent agree with all of your choices, only that he or she respects your right to get the treatment you want and is willing to advocate on your behalf.
Proximity. You’re not legally required to name an agent who lives in New York, but consider that the person you choose may be called to be by your side for an extended period of time. If you know more than one person who would make a good agent, and one of them lives nearby, proximity may be the deciding factor.
In New York, your agent may not be:
- under the age of 18, unless he or she is the parent of a child, or married
- your attending physician
- currently appointed as the health care representative for ten or more other people, unless the agent is your spouse, child, parent, brother, sister, or grandparent
- an operator, administrator, or employee of a hospital if, at the time of the appointment, you are a patient or resident of, or have applied for admission to, that hospital.
These restrictions don't apply to:
- an operator, administrator, or employee of a hospital who is related to you by blood, marriage, or adoption, or
- a doctor who is not your attending doctor, except that no doctor affiliated with psychiatric care facility may serve as agent for you if you are living in or being treated by that facility, unless the doctor is related to you by blood, marriage, or adoption.
If these requirements disqualify your first choice, you should name someone else to serve.
Don't Name More Than One Agent
It’s best to name just one person to speak for you. Your agent will be acting for you during a stressful time, when even those who get along well may disagree under stress. This could disrupt your medical treatment at exactly the time when calm, clear heads are needed most.
Choose the person who is best for the job, and name the others as first and second alternates. Your alternates will serve, in the order named, if your first choice is unavailable.
For more information about making health care documents, see What New York Residents Need to Know About Living Wills and Medical Powers of Attorney.
If you're ready to start making your health care documents, see The Best Sources for Health Care Forms in New York.