Powers of Attorney and Health Care Directives
The New York statutory power of attorney
A will decides what happens after you die. These documents decide what happens while you are alive and cannot speak for yourself — who pays your bills, who talks to your bank, and who tells your doctors what you would have wanted.
Most people put them off because nothing is wrong. That is precisely when they can be signed. Once capacity is in question, the window has closed, and the alternative is a guardianship proceeding in court: public, slow, and paid for out of the same money it is meant to protect.
A power of attorney lets someone you name — your agent — handle your property and financial affairs. In New York it is governed by the General Obligations Law, and the statute was rewritten in 2021. If you were told what to expect before June 2021, several things have changed.
It is durable unless you say otherwise. New York's rule runs the opposite way from what most people assume. A power of attorney continues after you lose capacity automatically; you have to add language to stop it. That is the whole point of signing one.
It needs two witnesses as well as a notary. Since 2021 the principal's signature must be acknowledged before a notary and witnessed by two people. The notary is allowed to be one of the two, so in practice three people are in the room including you. The two witnesses cannot be your agent, and cannot be anyone the document names as a permitted recipient of gifts. Beyond that the statute does not require them to be strangers — a relative or a beneficiary of your will may witness.
It must be signed, initialled and dated. The initialling is not decorative. It is how you choose which categories of authority your agent gets, and a form that has been signed but not initialled is a common reason a bank sends one back.
The separate gifts rider is gone. Before 2021 anything beyond a token gift needed a second document called a Statutory Gifts Rider. That section of the law was repealed. Gifts up to a total of $5,000 a year now sit inside the main form; anything above that figure, any authority for your agent to make gifts to themselves, and any power to change how your property is held must be written into the Modifications section. If it is not written there, your agent does not have it — and for most families that section is the single most important part of the form.
Your old one is still valid. When the law changed, powers of attorney that were properly signed under the earlier rules stayed good, and third parties are still required to consider them. There are practical reasons to sign a current form — banks argue less with the one they recognize — but validity is not one of them.
When a bank will not accept it
This is the complaint we hear most, and New York does something about it. A business operating in this state may not refuse a properly executed statutory short form without reasonable cause, and the law lists refusals that are automatically unreasonable: that the form is not the bank's own form, that time has passed since it was signed, or that there is a gap between the date you signed and the date your agent signed.
The bank has ten business days from the date the form is presented to accept it, reject it in writing with its reasons, or ask your agent for a sworn affidavit. If it asks for the affidavit, it then has seven business days after receiving it.
If it still refuses, the remedy is a special proceeding in court, and a court that finds the refusal unreasonable may award damages including reasonable legal fees. Two honest qualifications. That proceeding is the only remedy the statute provides — there is no separate lawsuit for damages. And the deadlines above do not apply to the State Comptroller, to state public retirement systems, or to the Department of Health and local social services districts administering Medicaid, which are the very offices families most often need to reach.
One further limit worth knowing before you sign anything: these protections apply to the statutory short form. Nothing in the law requires a bank to accept a power of attorney that is not one.
A power of attorney ends at death
It is not a small point and it surprises people. The moment the principal dies, the agent's authority stops. Nobody can use it to pay a funeral bill, close an account or sign a deed. From that point forward the only person who can act is an executor or administrator appointed by the Surrogate's Court.
A power of attorney also ends if you revoke it, if your agent dies or resigns with no successor named, or — unless the document says otherwise — if you and your agent were married and the marriage ends in divorce or annulment. New York adds an unusual wrinkle: if the appointment was revoked only because of the divorce, remarrying the same person revives it.
The health care proxy
A health care proxy appoints someone to make medical decisions for you if you cannot make them yourself. It is a different document under a different statute, and the formalities are different too.
Two adult witnesses, and no notary. The proxy is signed and dated in front of two adults who also sign, stating that you appeared to sign willingly and free from duress. There is no notarization requirement anywhere in the statute. The person you appoint as your agent cannot be one of the witnesses.
It starts only when a practitioner says you cannot decide. Your agent has no authority while you can still make your own decisions. Authority begins on a written determination, to a reasonable degree of medical certainty, that you lack capacity to make health care decisions — recorded in your medical record with the practitioner's opinion on the cause, extent and probable duration. New York now allows that determination to be made by a physician, a nurse practitioner or a physician assistant. A decision to withhold or withdraw life-sustaining treatment additionally requires a second practitioner to confirm the finding.
It does not expire. Unless you write in a date or a condition, it stays in effect until you revoke it. If your spouse is your agent, the appointment is revoked by divorce or legal separation unless you have said otherwise. Note the difference from a power of attorney: legal separation ends a health care appointment, and there is no revival on remarriage.
The feeding tube question, and why it has to be in writing
This is the provision that catches families, and it is worth stating precisely.
Your health care agent generally decides according to your wishes, or — if your wishes are not known and cannot be discovered with reasonable diligence — according to your best interests. Artificial nutrition and hydration are carved out of that fallback. If your wishes about a feeding tube are not reasonably known and cannot be discovered, your agent simply has no authority to decide about it at all. The authority is not redirected to a best-interests judgment. It is removed.
The legal test is whether your wishes are reasonably known, not whether you wrote them on the form. In principle a conversation your agent remembers can satisfy it. In practice, at two in the morning in a hospital corridor, a document that says what you wanted is the difference between your agent being able to act and being told they cannot. That is why we ask about it, and why the answer belongs on the page.
Living wills in New York
New York has no living will statute. There is no official form, no execution requirement, and no statutory definition — a fact worth saying plainly, because a great deal of published material implies otherwise.
What New York has instead is a line of Court of Appeals decisions holding that life-sustaining treatment may be withdrawn from a person who can no longer decide where there is clear and convincing evidence of what that person wanted while competent. A living will is not a form that operates by itself. It is evidence — the clearest and most durable evidence available — that meets that standard.
That is why a living will and a health care proxy belong together rather than as alternatives. The proxy names the person. The living will tells that person, and the hospital, what you actually wanted.
What happens if you sign nothing
For medical decisions, New York has a statutory list of people who may decide for a patient who has no health care agent — but the list applies only in a hospital, a nursing home or hospice, or to hospice care wherever it is given. There is no statutory decision-maker for care at home or in the community. Outside those settings the fallback is a guardianship proceeding.
Where the list does apply, the order is: a court-appointed guardian with authority over health care first, then a spouse who is not legally separated from the patient, or a domestic partner; then an adult child; then a parent; then an adult brother or sister; and last, a close friend.
Read that order again, because the last class is wider than it looks. New York's definition of a close friend sweeps in every relative who is not a spouse, adult child, parent, brother or sister — which means a devoted granddaughter or a niece who has managed everything for years ranks below an estranged brother, and must additionally hand the treating practitioner a signed statement about her relationship before she can be heard at all.
For financial matters there is no list at all. If nobody holds a power of attorney, the only route is an Article 81 guardianship in the Supreme Court.
MOLST and DNR orders are something else again
A MOLST form — Medical Orders for Life-Sustaining Treatment — is a Department of Health form signed by a practitioner. It is a medical order, not an appointment, and it takes effect as soon as the patient consents and the practitioner signs it, whether or not the patient has lost capacity. It is the form New York uses for do-not-resuscitate and do-not-intubate orders outside a hospital.
It does not replace a health care proxy, and a proxy does not replace it. One says who decides; the other is an instruction to treating clinicians about a specific decision already made.
How we handle this
We prepare powers of attorney, health care proxies and living wills as part of an estate plan, and on their own where that is what is needed. What that usually involves is a conversation about who should hold each role — they need not be the same person, and often should not be — and then getting the signing formalities right, because that is where these documents fail.
We keep the conversation short and practical. It is one meeting for most people.