New York Advance Directive: Proxy, and No Living Will

New York is the exception: there’s no living will on the state’s books at all. The one document that carries the weight here is the Health Care Proxy — and if you only knew one thing about New York, that would be it.

Most states hand you a form that records your wishes and names your decision-maker. New York doesn’t. Its statute gives you a Health Care Proxy — the form that names who decides — and stops there. There is no statutory living will form in New York, which makes choosing the right agent more important here than almost anywhere else.

This page explains why the New York advance directive works this way, where to get the official proxy, how New York wants it signed, and how a living will still fits into the picture even without a statute behind it.

New York, in short

The main document is the Health Care Proxy. It names your health care agent.
Governed by Public Health Law Article 29-C (§ 2981).
No statutory living will. New York has no living-will statute — the proxy is what the law provides.
Two adult witnesses. No notary needed. New York is witnesses-only.
The agent can’t be a witness.
A living will still helps — it’s valid through New York case law, and it guides your agent.

Why New York is different

New York never enacted a living will statute. What it enacted, in Public Health Law Article 29-C, is the Health Care Proxy — a form on which a competent adult appoints a health care agent to make medical decisions when the person can’t.

That single design choice drives everything about planning here. In a state with a statutory living will, someone can record their wishes on an official form and, in theory, let the document speak for them. In New York, the document the law hands you is fundamentally about who decides, not what’s decided. So the quality of that choice — the person you name — carries more weight in New York than in almost any other state.

This lines up with the broader truth about these documents: a named person can respond to situations no form ever anticipated, while written instructions only cover what they named. Why the agent usually matters more than the living will →

Does a living will do anything in New York?

Yes — even though there’s no statute for it. New York courts have long recognized that a person’s clearly expressed wishes about treatment must be honored, provided they’re proven by clear and convincing evidence. A written living will is one of the strongest forms of that evidence.

So in New York a living will is not a statutory form you file — it’s a written statement of wishes that:

Guides your health care agent, giving them your actual instructions to act on rather than their best guess.
Serves as evidence of your wishes if you never named an agent, or the agent is unavailable.
Carries real legal weight through New York case law, even without a statute behind it.

The New York State Bar Association recommends being specific in it — particularly about artificial nutrition and hydration, and about whether you’d want a DNR — and avoiding vague phrases like “heroic measures” that clinicians can’t act on.

Where to get the official New York form

The Health Care Proxy is short, free, and doesn’t require a lawyer. Reliable sources:

The New York State Department of Health publishes the official Health Care Proxy form and instructions at health.ny.gov, in multiple languages.
The New York State Bar Association provides the proxy along with living will guidance.
New York hospitals keep the form on hand and are required to offer information about it.

If you can’t locate it, the Eldercare Locator (1-800-677-1116) connects you to the Area Agency on Aging for her county.

How New York wants it signed

Under § 2981, the Health Care Proxy must be signed and dated by her in the presence of two adult witnesses, who then also sign, stating that she appeared to sign willingly and free from duress. New York does not require a notary — two witnesses is the whole requirement.

The firm rules:

The person she names as agent cannot be a witness.
Both witnesses must be adults.
If she lives in a mental hygiene facility, special witness rules apply — at least one witness must be unaffiliated with the facility, and in some cases a qualified psychiatrist is required.

Two features worth knowing. New York now permits remote witnessing of a health care proxy by audio-video technology, subject to specific conditions — a recent change that makes signing far easier when family is scattered. And there is no residency requirement: someone can execute a valid New York proxy even if they live elsewhere, as long as they’re a competent adult.

The New York essentials

Name a health care agent you trust, and an alternate in case the first is unavailable. Sign in front of two adult witnesses who aren’t the agent. Then write a short living will to go with it — even without a statute, it’s what tells your agent what you actually want, and it stands as evidence if the agent can’t act. Be specific about tube feeding and DNR wishes.

“She has dementia — can she still sign?”

Possibly, and New York’s own courts have said so. In one New York case, a proxy signed by a woman with moderate dementia was upheld — the court holding that a dementia diagnosis does not by itself make someone incompetent to appoint an agent. Capacity is judged at the moment of signing: can she understand that she’s naming someone to make health decisions for her?

The practical lesson is the same one that runs through all of this: do it early, while no one can question capacity. If there’s already a diagnosis, it may not be too late — but don’t assume, and consider having a physician note her capacity on the day she signs. More on capacity, and why a diagnosis isn’t the same as incapacity →

What the proxy doesn’t do: MOLST and money

It won’t stop paramedics from performing CPR. New York uses MOLST — Medical Orders for Life-Sustaining Treatment — as the physician-signed order that emergency responders can act on, available through New York’s eMOLST system. It’s for people who are seriously ill or frail, arranged with her doctor, and it’s the document that actually governs resuscitation outside a hospital. More on why a directive alone won’t stop CPR →

It doesn’t cover money. A health care agent has no authority over finances — that needs a separate durable power of attorney, which in New York is its own statutory form. What a financial power of attorney is, and the word that decides whether it works →

After she signs

Give the agent and any alternate a copy of the proxy, and of the living will if she wrote one.
Give copies to her physician and any hospital or facility involved in her care.
Keep one somewhere obvious at home, and photograph it.
Ask her doctor about MOLST if she’s seriously ill and resuscitation is a concern.

The proxy settles who decides. This settles what she needs now.

Getting the documents done is one half of an aging-at-home plan. The other is knowing how much day-to-day help she actually needs — and “she’s slowing down” isn’t something a doctor or an agency can act on.

The care needs checklist walks the same fourteen questions a visiting nurse walks and ends with something specific: which daily tasks need hands-on help, roughly how many hours a week, and which gaps are genuine safety issues.

Take the care needs checklist →

Free. No email, nothing stored — it runs in your browser and the answers never reach me.

Where to go next

The full how-to, including the witnessing mistakes that void a document: how to fill out an advance directive →

The financial side is separate: what a power of attorney is →

If she won’t discuss any of it: when an aging parent refuses help →

Questions families ask

What is the New York advance directive called?

New York’s primary advance directive is the Health Care Proxy, which appoints a health care agent to make medical decisions under Public Health Law Article 29-C. Unlike most states, New York has no statutory living will form, so the proxy is the document the law provides. A separate written living will can accompany it to record specific treatment wishes.

Does New York have a living will?

New York has no living will statute, but living wills are still legally valid there through court decisions rather than legislation. A written living will serves as clear and convincing evidence of a person’s wishes and guides the health care agent, and it is especially valuable if no agent was named or the agent is unavailable. The New York State Bar Association recommends being specific about artificial nutrition and hydration and DNR wishes.

Does a New York health care proxy need to be notarized?

No — New York requires two adult witnesses and does not require notarization. The person signs and dates the proxy in the presence of two adult witnesses, who also sign and confirm the person signed willingly and free from duress. A notary is neither required nor a substitute for the witnesses.

Who can witness a New York health care proxy?

Two adults must witness the signing, and the person appointed as health care agent cannot be one of them. For residents of certain mental hygiene facilities, additional rules apply, such as requiring at least one unaffiliated witness. New York also now permits remote witnessing by audio-video technology under specific conditions.

Can someone with dementia sign a New York health care proxy?

Possibly — New York courts have held that a dementia diagnosis does not by itself make a person incompetent to appoint a health care agent, and a proxy signed by a person with moderate dementia has been upheld. Capacity is assessed at the moment of signing, meaning whether the person understands they are naming someone to make health decisions. Signing early, before capacity can be questioned, is strongly advisable, and a physician’s note of capacity on the signing day can help.

Where do I get the official New York health care proxy form?

The New York State Department of Health publishes the official Health Care Proxy form and instructions at health.ny.gov in multiple languages, and the New York State Bar Association provides it along with living will guidance. New York hospitals keep the form on hand and are required to offer information about it. The Eldercare Locator at 1-800-677-1116 can direct you through the local Area Agency on Aging.

Does a New York advance directive stop CPR at home?

No — the health care proxy is not an emergency order, so paramedics generally cannot act on it to withhold resuscitation. New York uses MOLST, meaning Medical Orders for Life-Sustaining Treatment, as the physician-signed order that emergency responders follow, available through the state’s eMOLST system. It is intended for people who are seriously ill or frail and is arranged with the treating doctor.

Changelog

26 July 2026 — Published. The absence of a living will statute, the health care proxy execution and witness rules, remote witnessing, the dementia-capacity case law, and MOLST verified against New York Public Health Law Article 29-C (§ 2981) and New York State Bar Association guidance.

This page is reviewed every six months, and immediately if New York law changes. When it changes, this list will say so.

Sources

New York Public Health Law Article 29-C, § 2981 — appointment of health care agent, execution, two-witness requirement, agent-cannot-witness rule, facility witness rules, and remote witnessing
New York State Bar Association — LEGALease guidance on living wills and health care proxies, including the clear-and-convincing-evidence standard and specificity on artificial nutrition and hydration
New York State Department of Health — official Health Care Proxy form and MOLST/eMOLST program
New York case law recognizing that dementia alone does not establish incompetence to appoint an agent
Thirteen years of the author’s own observation inside home health and hospice referral, labeled as such throughout

Last verified: 26 July 2026 against New York Public Health Law Article 29-C (§ 2981) and New York State Bar Association guidance · Next review: January 2027, or immediately on a relevant change in New York law

Written by Mark Duda. Thirteen years running business development for one of New Jersey’s largest home health and hospice organizations, including the nurse liaisons who arranged care at the bedside before patients went home. More about me → · How this page was checked →

This page is educational and is not legal advice. Mark Duda is not an attorney. It describes New York law as of the date shown and may not reflect later changes. Advance directive requirements are exacting and the consequences of an execution error are serious — confirm the current form and rules with the official New York source, and consult an attorney licensed in New York if anything is unclear. See our disclaimers.