Every New York adult should have three incapacity documents: a durable power of attorney for finances, a health care proxy for medical decisions, and a living will for 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 Brooklyn family out of an Article 81 guardianship proceeding in court. Without them, no one automatically has authority over your finances, not even a spouse.
The three documents at a glance
- Durable Power of Attorney — authorizes an agent to handle your finances, property, and legal matters.
- Health Care Proxy — appoints an agent to make medical decisions when you cannot.
- Living Will — records your wishes about life-sustaining treatment.
New York Statutory Short Form Power of Attorney (the 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 Power of Attorney must be:
- Signed and dated by the principal (the person granting authority),
- Notarized, and
- Witnessed by two people who are not named in the document as agents.
Principal — the person who grants authority. Agent (or attorney-in-fact) — the person authorized to act.
The 2021 reform folded the old Statutory Gifts Rider into the form itself: gifting authority above a modest annual amount is now handled within the document’s modifications section rather than a separate rider. The law also penalizes third parties — like banks — who unreasonably refuse a valid POA, which historically frustrated many Brooklyn families at the teller window.
A POA should be durable, meaning it survives your incapacity. A non-durable POA ends exactly when you most need it.
Health Care Proxy (Public Health Law Article 29-C)
Under Public Health Law Article 29-C, a New York health care proxy lets you name a health care agent to make medical decisions if a doctor determines you lack capacity. It requires two adult witnesses. Your agent steps into your shoes for treatment choices — but only when you cannot decide for yourself.
Living will vs. health care proxy
Health care proxy — names who decides your medical care. Living will — states what you want regarding life support and end-of-life treatment.
The two complement each other: the proxy appoints your decision-maker, and the living will gives that person guidance. Brooklyn’s many multi-generational and multi-faith households especially benefit from putting these wishes in writing to prevent family conflict.
MOLST and end-of-life directives
The MOLST form (Medical Orders for Life-Sustaining Treatment) is a bright-pink medical order, signed by a physician, that travels with a seriously ill patient across hospitals, nursing homes, and EMS. It converts your wishes into actionable medical orders and is common for those with advanced illness.
What happens without these documents: Article 81 guardianship
If you become incapacitated with no power of attorney or proxy in place, your family must petition for an Article 81 guardianship under the Mental Hygiene Law. That is a contested, public, and costly court proceeding — the court appoints a guardian, sometimes a stranger, and supervises them for years. For a Brooklyn resident, an Article 81 petition is generally heard in the Supreme Court, Kings County, not the Surrogate’s Court. Proper incapacity documents are precisely what avoid it.
FAQ
Is the old New York power of attorney form still valid? A POA validly executed under the pre-2021 rules generally remains valid, but new ones should use the current GOL 5-1501 statutory form.
Does a health care proxy expire? No — it stays in effect until you revoke it or name a new agent, though you should review it periodically.
Can one person be both my financial agent and health care agent? Yes, you may name the same trusted person in both documents, though some Brooklyn families split the roles.
Where is an Article 81 guardianship filed for a Brooklyn resident? Generally in the Supreme Court, Kings County. Avoiding that proceeding is the whole point of these documents.
Talk to an attorney
To put a complete incapacity plan in place — POA, proxy, and living will — book a 30-minute consultation with Russel Morgan: calendly.com/russel-morgan/30min. Pair this with your will and any trust planning.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.