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The Difference Between Durable Power of Attorney and Healthcare Proxy in New York

Published July 9, 2019

A durable power of attorney and a healthcare proxy, also known as a medical by proxy, are legal tools commonly used when estate planning or in caring for another person. Although similar in that they each are the appointment of an agent to act on behalf of someone else, they have differences that set them apart from one another.

What is durable power of attorney?

In general, power of attorney grants the authority to a designated agent to act on behalf of the principal in a variety of legal, medical or financial matters. It can be general and grant the agent the ability to act on the principal’s behalf in a wide range of potential situations, such as paying bills or making business decisions, or specific, such as selling a property or paying bills for a certain period of time only.

Power of attorney usually is valid for a specified time period or will terminate if the principal is incapacitated. Durable power of attorney, however, means that the authority to make decisions goes on even if the principal becomes disabled or incapacitated in some way.

There are a few advantages of durable power of attorney, including the ability to act immediately if the principal does become unable to make their own legal decisions because authorization has already been given for the power of attorney. It is also ideal when managing the assets of an ill or disabled person who does not have the means to justify more costly planning methods like trusts or guardianships.

What is medical by proxy?

Medical by proxy is like power of attorney in that it allows a trusted, pre-determined person of the principal’s choosing to make medical decisions when they are unable to do so. The agent can be given as much or as little decision-making ability as the principal likes and, ideally, they will know the principal’s wishes and be able to act accordingly.

How are they different?

One key difference between these planning tools is that filling out medical by proxy forms does not require an attorney’s help in New York. Anyone over the age of 18 can be chosen and the forms are valid when signed by two adult witnesses, who are not the health care agent.

Although power of attorney and medical by proxy may be given to the same person, it also can also be different people chosen for different reasons. In that example, if the principal was somehow incapacitated by illness or injury their medical proxy would tell doctors and other care professionals what to do while the person with durable power of attorney would pay the hospital bills and arrange for long term needs.

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