Every New York adult needs three incapacity documents: a durable power of attorney for finances, a health care proxy for medical decisions, and a living will stating end-of-life wishes. Together they let people you trust act for you if illness or injury leaves you unable to act for yourself — and they keep your family out of a costly Article 81 guardianship proceeding. These are separate from a will, which only takes effect at death.
The three documents and what each does
- Power of attorney — authorizes an agent to handle your finances and property (pay bills, manage accounts, sell or maintain your Brooklyn home).
- Health care proxy — names an agent to make your medical decisions if you cannot.
- Living will — records your end-of-life treatment wishes to guide your proxy and doctors.
New York’s 2021 statutory power of attorney (GOL 5-1501)
New York overhauled its power of attorney form effective June 13, 2021, under General Obligations Law 5-1501. Key features of the modern form:
- It must be signed, dated, and acknowledged before a notary, and signed by two witnesses (the notary may serve as one).
- The old separate Statutory Gifts Rider was eliminated — gifting authority above $5,000 per year is now built into a modifications section of the single form.
- Banks and financial institutions face penalties for unreasonably refusing a valid statutory POA, addressing a long-standing problem for New York families.
Make the POA durable so it survives your incapacity — that is the entire point of the document.
Health care proxy (Public Health Law Article 29-C)
A health care proxy under New York Public Health Law Article 29-C lets you appoint a single agent to make medical decisions when your doctor determines you lack capacity. It takes only your signature and two witnesses — no notary. Your agent can consent to or refuse treatment on your behalf, but can only direct the withdrawal of artificial nutrition and hydration if they know your wishes, which is why a living will matters.
Living will vs. health care proxy
Living will: a written statement of the treatment you would or would not want at the end of life (for example, refusing artificial life support). It speaks for you. Health care proxy: the document naming a person to decide for you. The proxy chooses the decision-maker; the living will tells that decision-maker — and your doctors — what you wanted. You should have both.
MOLST and end-of-life directives
A MOLST (Medical Orders for Life-Sustaining Treatment) is a bright-pink medical order form, signed by a physician, that travels with a seriously ill patient and directs care such as resuscitation and intubation. Unlike a living will, MOLST is an actual medical order. It is appropriate for people with advanced illness, not healthy adults.
What happens without these documents: Article 81 guardianship
If you lose capacity with no power of attorney or health care proxy in place, your family must petition for an Article 81 guardianship under the Mental Hygiene Law — a public court proceeding to have a judge appoint someone to manage your affairs. It is slow, expensive, and emotionally draining, and it often involves court evaluators and ongoing reporting. For Brooklyn residents, an Article 81 petition is heard in the Supreme Court, Kings County, not the Surrogate’s Court. Proper incapacity documents avoid it entirely.
Frequently asked questions
Is my old New York power of attorney still valid? Yes — POAs validly executed under prior law generally remain effective. But the 2021 form (GOL 5-1501) is what new documents should use.
Does a health care proxy need a notary? No. It requires your signature and two witnesses. A power of attorney, by contrast, requires a notary and two witnesses.
Who decides for me in Brooklyn if I have nothing in place? No one automatically — your family must seek an Article 81 guardianship in Kings County Supreme Court, a costly process these documents prevent.
To put your incapacity plan in place, book a consultation with Russel Morgan. See also wills and trusts.