Nobody likes to think about a medical crisis. But here's the reality: if you're ever in a hospital bed and can't communicate your own wishes, someone else will make decisions for you. In New York, if you haven't prepared the right legal documents in advance, those decisions may not reflect what you actually want.
The good news is that New York law gives you real, effective tools to stay in control of your healthcare — even when you're unable to speak for yourself. Here's what you need to know.
The three documents that protect your healthcare decisions in NY
New York recognizes three main types of advance directives, and they each play a distinct role. Most people need more than one.
1. The healthcare proxy
This is the most important document for most New Yorkers. Under New York Public Health Law § 2980, any adult 18 or older can appoint a "healthcare agent" — a trusted person who is legally empowered to make medical decisions on your behalf if two doctors determine you're unable to make those decisions yourself.
Your agent can consent to or refuse treatments, talk to your doctors, and make judgment calls in situations your documents might not have anticipated. That flexibility is enormous. A living will can't account for every scenario; a trusted person who knows your values can.
To make a valid healthcare proxy in New York:
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You must sign the document while mentally competent
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Two adult witnesses must sign in your presence (your named agent cannot be one of those witnesses)
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No notarization is required, though some attorneys recommend it for added protection
Choose your agent carefully. Name an alternate agent too, in case your first choice is unavailable. Talk to both of them — don't just hand them a document they've never seen.
2. The living will
A living will is a written statement of your specific medical wishes — for example, whether you want CPR, mechanical ventilation, feeding tubes, or artificial hydration if you're in a terminal condition or permanent unconscious state.
New York does not have a specific statute governing living wills the way it does healthcare proxies. Instead, living wills are recognized under common law, meaning they serve as evidence of your wishes but are not automatically binding on physicians the way a healthcare proxy is. According to the New York State Bar Association, to meet the "clear and convincing proof" standard used by NY courts, your living will must express your wishes explicitly and specifically — vague statements won't hold up.
For most families, the best approach is to have both: a healthcare proxy that names your agent, and a living will that spells out your wishes so the agent has a clear roadmap.
3. The MOLST form
The Medical Orders for Life-Sustaining Treatment (MOLST) is a different kind of document. It's a physician-signed medical order — not just a personal directive — which means it's immediately actionable, even by EMTs arriving at your home.
The New York State Department of Health updated the MOLST form (DOH-5003) in May and June 2025, moving DNR and Do Not Intubate (DNI) orders to the first page for faster recognition by emergency responders. The updated form also requires mandatory review at least every 90 days.
Unlike a healthcare proxy or living will, MOLST is generally intended for people who have a serious illness, advanced age, or a high likelihood of a medical emergency. Your doctor completes it with you. If you're relatively healthy, you don't need a MOLST — a healthcare proxy and living will are the right foundation.
What happens if you don't have these documents?
Without a healthcare proxy, New York's Family Health Care Decisions Act (FHCDA) provides a default list of decision-makers — typically a spouse, then adult children, then other relatives. This might sound fine, but the FHCDA process can be slow, can create family conflict, and may result in decisions that don't match your wishes at all.
If your family disagrees, or if no family member is available, a court may get involved. That's the last place you want critical medical decisions being made.
Four practical steps to make your wishes stick
Get the documents signed properly. A healthcare proxy signed without two proper witnesses is invalid in New York. The execution requirements are simple, but they matter.
Share copies widely. Give a copy to your healthcare agent, your alternate agent, your primary care doctor, any specialists you see regularly, and any hospital where you're likely to be treated. Keep a copy at home somewhere accessible. Don't lock the only copy in a safe.
Tell your family what you've decided. Documents alone don't prevent conflict. A conversation with your family — explaining why you made the choices you did — goes a long way toward ensuring your wishes are actually honored rather than challenged.
Review your documents regularly. Your health circumstances, family relationships, and personal values can all change. Revisit your advance directives after a major health event, after a marriage or divorce, or whenever your named agent is no longer the right person for the role.
A note on durable power of attorney
A healthcare proxy only covers medical decisions. For financial matters — paying bills, managing accounts, handling property if you're incapacitated — you need a separate durable power of attorney. These are two distinct documents under New York law, and having one doesn't substitute for the other. A complete plan includes both.
At Alatsas Law Firm, we help Brooklyn, Queens, and Staten Island families think through estate planning and long-term care as a whole — not just one document at a time. Attorney Ted Alatsas has worked with families across these communities for nearly 30 years, and one of the most common regrets we hear is that people waited too long to put these protections in place.
You don't need a health crisis to get started. You just need to decide that your future medical decisions are too important to leave to chance.
If you have questions about healthcare proxies, advance directives, or how these documents fit into your broader estate plan, we're here to help. Reach out to schedule a consultation — it's one of the most straightforward and important things you can do for yourself and the people you love.
