Health Care Proxies and Advance Directives

If you could not speak for yourself in a New York hospital tomorrow, who would make your medical decisions — and would they know what you want? New York gives you several advance directives to answer those two questions, and they are not interchangeable. Understanding how the health care proxy, the living will, and the MOLST form compare is the key to building protection that actually works at the bedside.

The Health Care Proxy: Naming Your Voice

The cornerstone is the health care proxy, authorized by Public Health Law Article 29-C. It lets you appoint a trusted “health care agent” to make medical decisions for you if a physician determines you lack capacity. The proxy is broad and flexible: your agent can weigh real-time information that no document could anticipate. To be valid in New York, the proxy must be signed and witnessed by two adults. One critical New York rule — your agent cannot make decisions about artificial nutrition and hydration unless you have made your wishes on that subject known.

The Living Will: Stating Your Wishes

A living will is different. Rather than naming a person, it records your instructions about life-sustaining treatment — for example, whether you would want a ventilator or feeding tube in an end-stage condition. New York recognizes living wills through case law rather than a dedicated statute, and courts look for “clear and convincing” evidence of your wishes. A living will supplies exactly that evidence, which is why it pairs so well with a proxy: the proxy names who decides, the living will tells them what you wanted.

The MOLST: Doctor’s Orders, Not Just Wishes

The Medical Orders for Life-Sustaining Treatment (MOLST) form is a third, more clinical tool. Unlike a proxy or living will, MOLST is an actual medical order signed by a physician, reflecting decisions about resuscitation and other treatments for patients with serious illness. It travels with the patient between settings and is followed by EMS. MOLST is generally appropriate for those who are seriously ill, not for healthy adults planning ahead.

Comparing the Three

• Health care proxy: Names a decision-maker; flexible; for every adult.
• Living will: States your treatment wishes; provides clear-and-convincing evidence; complements the proxy.
• MOLST: A physician’s order; portable across care settings; for the seriously ill.

How They Work Together in New York

These directives are strongest as a set. A New Yorker in good health typically signs a health care proxy and a living will together — one to appoint an agent, one to guide that agent and provide the evidence New York courts require. If serious illness develops later, a MOLST is added through your physician. Choosing only one often leaves a gap: a proxy with no instructions, or instructions with no one empowered to enforce them.

Advance directives only help if they are valid, current, and accessible to your family and doctors. To make sure your proxy and related documents meet New York’s requirements under PHL Article 29-C and reflect your real wishes, consult a licensed New York estate planning attorney.