New York Power of Attorney & Health Care Proxy — Brooklyn Guide

Every New York adult should have three incapacity documents: a durable power of attorney (to manage finances), a health care proxy (to make medical decisions), and a living will (to express end-of-life wishes). Without them, a Brooklyn family may have to petition for a costly Article 81 guardianship in court if a loved one loses capacity. These documents are the planning side of avoiding the Kings County Surrogate’s Court’s involvement during a crisis.

The three documents every New Yorker needs

1. Durable power of attorney — appoints an agent to handle finances and property if you can’t.
2. Health care proxy — appoints an agent to make medical decisions when you can’t.
3. Living will — states your wishes about life-sustaining treatment.

Together they cover money, medicine, and end-of-life choices.

New York Statutory Short Form Power of Attorney (2021 reform)

New York overhauled its power-of-attorney law effective June 2021 under General Obligations Law (GOL) 5-1501. The modern Statutory Short Form POA requires:

• The principal’s signature, witnessed by two people (who are not named as agents), and notarized.
• A clear grant of authority to the agent.

Durable POA: a power of attorney that remains effective even after the principal becomes incapacitated — essential, since an ordinary POA would lapse exactly when needed.

The modern combined gifts authority

The pre-2021 separate Statutory Gifts Rider was eliminated. Under the current form, the authority to make gifts above a small statutory threshold is built into a modifications section of the POA itself, rather than a separate rider. This simplified the document but makes precise drafting important — overly broad gifting authority can be abused, while too little can stall Medicaid or estate planning.

Health care proxy (Public Health Law Article 29-C)

A health care proxy under New York Public Health Law Article 29-C lets you name an agent to make medical decisions if you lose capacity. It takes effect only when a physician determines you can’t decide for yourself, and your agent must follow your known wishes. It requires two witnesses but not a notary.

Living will vs. health care proxy

Health care proxy: names a person to make medical decisions for you. Living will: states your treatment wishes directly (e.g., whether to use life support) to guide that person and your doctors.

You want both: the proxy names a decision-maker, the living will tells them — and the doctors — what you’d want.

MOLST and end-of-life directives

A MOLST (Medical Orders for Life-Sustaining Treatment) is a physician’s order, on the recognizable bright-pink form, that translates your end-of-life wishes into actionable medical orders for seriously ill patients. It complements, rather than replaces, the health care proxy and living will.

What happens without these documents: Article 81 guardianship

If a Brooklyn resident loses capacity without a POA or proxy in place, the family’s only option may be an Article 81 guardianship under the Mental Hygiene Law — a court proceeding to appoint a guardian. It’s public, costly, slow, and supervised by the court. For Brooklyn residents, guardianship petitions are generally heard in the Supreme Court for Kings County, not the Surrogate’s Court (which handles guardianships for minors and certain disabled adults under SCPA Article 17-A). Proper incapacity planning avoids this entirely.

Incapacity planning FAQ

Is an old New York POA still valid? POAs validly executed under prior law generally remain valid, but the 2021 form is cleaner; review older documents.

Does a health care proxy need a notary? No — two witnesses are required, but notarization is not, unlike the POA.

Who decides if I can’t, with no documents? No one automatically — your family would likely need an Article 81 guardianship through the court.

Put your incapacity plan in place

Russel Morgan prepares New York POAs, proxies, and living wills tailored to your family. Book a 30-minute consultation or see how these fit with wills and trusts.