Health Care Proxy Witnessing Made Easier

Executive Order Supports New Yorkers in Making Timely Medical Decisions 

An important Executive Order, 202.14, has been issued by Governor Cuomo that allows remote witnessing of health care proxies, among other documents, until May 7. This order will assist New Yorkers in completing advance directives to guide medical care in the face of the COVID-19 pandemic. 

COVID-19 has dramatically demonstrated the need for advance-care planning for medical treatment.  Current estimates indicate that fewer than one third of New Yorkers have made plans to guide medical  treatment in the event of hospitalization.  Estimates are considerably lower for New York’s communities of color where the impact of the coronavirus has been most severe. 

The New York Health Care Proxy form allows individuals to document their medical wishes and appoint a health care agent (a family member or close friend) to make decisions if they become too ill to communicate or make decisions for themselves.  Prior to this order, this document required physical signatures from two witnesses, which may not be possible due to social distancing requirements.  This temporary easing of regulations will allow the use of available technology in making urgent health care decisions. 

The New York Health Care Proxy form allows individuals to document their medical wishes and appoint a health care agent (a family member or close friend) to make decisions if they become too ill to communicate or make decisions for themselves.  Prior to this order, this document required physical signatures from two witnesses, which may not be possible due to social distancing requirements. 

The executive order (click to download) states that the use of audio-video technology is authorized for the purpose of witnessing a health care proxy if the following conditions are met:

• The person requesting that his or her signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
• The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
• The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
• The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
• The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

“We are extremely pleased with this timely order and commend Governor Cuomo for issuing it,” said Ayana Woods, Executive Director, End of Life Choices of New York (EOLCNY).  “And, we are pleased to have played a leadership role in removing barriers to witnessing. This change in regulation was supported by doctors and lawyers from across the state, including the Hospice and Palliative Care Association of New York State, the New York Legal Assistance Group, and Volunteers of Legal Service. I hope other organizations will join in promoting health care proxies and raising awareness about this new option, particularly those in communities of color where has a disproportionate impact.” 

Robert Milch, MD, a retired hospice physician in Buffalo Medicine said, “All patients entering the hospital should,  especially now, make their wishes known on life and death decisions, particularly as to the use of a ventilator and under what circumstances it might be withdrawn.  It is very important to convey goals of care in advance to those who make future health care decisions for you – and to complete a health care proxy.”

David Hoffman, Chief Compliance Officer at Carthage Area Hospital and EOLCNY Board member said, “Completing a health care proxy is essential for the peace of mind of individuals and their families.  Medical professionals find that advance health care decisions that make treatment options clear greatly facilitate patient care and outcomes.”

“We were hearing about problems that patients were experiencing, not being able to have witnesses present for the signing of health care proxies, given social distancing, at a time when more people are interested in  completing  them” said Judy Schwarz, EOLCNY Clinical Director. “This changes the options and will allow more New Yorkers to make important plans for their future.”

David C. Leven, Executive Director Emeritus and Senior Consultant, EOLCNY, said “The governor has taken an important first step, but there are many vulnerable populations unable to reach witnesses due to limited access to technology.  We recommend that a Notary Public also be allowed to witness signatures and that health care proxies be considered valid if the patient communicates auditorily to witnesses with their names and contact information on the health care proxy.”

End of Life Choices New York staff and expert volunteers will offer phone based counseling to those in need of help making an advance care directive at 212-726-2010 or  info@endoflifechoicesny.org.  

End of Life Choices New York is a nonprofit organization working to clarify critical issues in end of life care, a frequent point of debate and anxiety. It educates health care professionals, students, and the general public about end of life options; provides one on one counseling to patients and families; and advocates to get laws passed in New York State to improve end of life care. EOLCNY welcomes a broader discussion of options to expand choice for people as they encounter challenges in the end stages of life.      http://endoflifechoicesny.org/ 

For media inquiries, contact Tom Dunn, EDCommNY@gmail.com, 518-331-6097.   This press release is available for download as a pdf for sharing.