New York Q and A

Ten commonly asked questions about PAD’s for New York

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in September 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  You may use the New York law entitled ‘Health Care Agents and Proxies” to appoint an agent who will make decisions for you if you are unable to make those decisions yourself.  In addition, or alternatively, you may write instructions for your future mental health treatment in a Living Will.  The Office of the Attorney General has published a helpful guide titled “Health Care Proxy“, which sets out your options in detail.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  You may either write instructions in conjunction with appointing an agent, using a Health Care Proxy under the statute entitled “Health Care Agents and Proxies”, or you may write instructions without appointing an agent in the form of a Living Will.  Living Wills are not established under the New York Statutes but are accepted by the New York courts as evidence of health care wishes.  There are current proposals to amend the statutes so that Living Wills are formally recognized.  For more, see the State’s “Planning for your Mental and Physical Health Care Treatment” booklet.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, if you are creating a Health Care Proxy, you must follow the statutory formalities.  You must write your wishes in a document, which must be signed by you and two witnesses.  The witnesses must be people other than your agent.  If you reside in a mental hygiene facility, one of your witnesses must be unaffiliated with that institution and one or more must be a qualified mental health professional.   If you are creating a Living Will, you are strongly advised to follow the same procedure even though it is not a legal requirement at present.  For more, see the State’s “Planning for your Mental and Physical Health Care Treatment” booklet.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes.  If you wish to appoint an agent, you must appoint him or her using a Health Care Proxy.  For more, see the State’s “Planning for your Mental and Physical Health Care Treatment” booklet.  The booklet includes a standard Health Care Proxy form, which is not mandatory, but is recommended.  Your agent can be any competent adult as long as he or she is not your health care provider, unless that health care provider is also a relative of yours.  You may also appoint an alternate health care agent.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  Your agent can make any and all decisions that you could make if you were competent to do so.  However, you can choose to limit your agent’s authority if you wish, by stating on your Health Care Proxy form that he or she should only act for you only in one or more specified situations.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”? 

In making decisions for you, your agent must consult with your providers and use substituted judgment, in accordance with your religious and moral beliefs.  If your own views on the relevant decision cannot be ascertained in this way, your agent must make the decision in your best interests.  If you wish your agent always to be bound by any written instructions you have also made, you should say so in those instructions.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.  If you decide to create both a Health Care Proxy and a Living Will, you should share the contents of your Living Will with your agent, so that his/her decisions can be guided by it if necessary.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is a written decision by your attending physician that you are incompetent, plus a written statement of the cause and nature of your incompetence and an opinion about how long it is likely to last.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes, but only in respect of Health Care Proxies because the statute does not currently cover Living Wills.  Your providers may decline to follow your Proxy if your wishes are against their religious beliefs or moral convictions, although in that situation they must find another health care provider who is willing to follow it.  A court has the power to override an agent’s decision if it can be shown that the decision was made in bad faith, or that the agent was not exercising the required type of judgment (see question 6 above).  Additionally, if you are considered to be a danger to yourself or others, or otherwise in an emergency, it is likely that health care providers could decline to follow your Health Care Proxy or Living Will.

10.  How long does my PAD remain valid?

A Health Care Proxy or Living Will remains valid until it is revoked.  You may revoke a Proxy/Living Will by notifying your agent or provider orally or in writing, or by doing any other act that indicates your intent to revoke it, such as tearing it.  If you execute a new Proxy/Living Will, that revokes the old one.  If you appoint your spouse as your agent, he or she would no longer be a valid agent if you became divorced or legally separated after you wrote the document.  In that situation, you would need to amend the document to clarify who should be your agent.  Your Proxy may be validly revoked at any time, even if your attending physician considers you incompetent to make your own decisions.  The only exception is where a court has deemed you incompetent; in that situation you would not be able to revoke your Proxy or Living Will.