Remote Witnessing of Health Care Proxies

Q: How can my mom sign her health care proxy if she is homebound?

A: New York State now allows remote witnessing of health care proxies. This innovation is particularly vital for individuals who, due to medical reasons, are unable to safely execute a health care proxy in the direct presence of two witnesses. A health care proxy allows you to appoint an individual you trust to make health care decisions for you if you are unable to make such decisions for yourself. This can be a family member or a close friend who understands your wishes and values.

New York’s Public Health Law sets forth the requirements for executing a health care proxy. Under the traditional method, a competent adult may appoint a health care agent by a health care proxy signed and dated by the individual in the presence of two adult witnesses who must also sign the document.

Significantly, Section 2981 of New York’s Public Health Law was recently amended to allow for the remote witnessing of health care proxies using audio-visual technology such as Zoom or FaceTime, provided several conditions are met:

1. The principal, if not personally known to a remote witness, must display a valid photo ID to the remote witness during the audio-video conference;

2. The audio-video conference must allow for direct interaction between the principal and any remote witness;

3. Any remote witness must receive a copy of the health care proxy by facsimile or electronic means within 24 hours of the proxy being signed by the principal during the audio-video conference; and

4. The remote witness must sign the transmitted copy of the proxy and send it back to the principal.

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The introduction of remote witnessing marks a significant advancement in New York's health care proxy law. This can be especially helpful in situations where it may be difficult for someone to travel or meet in person, such as during a pandemic or if an individual has limited mobility. Further, finding suitable witnesses can often be challenging, especially considering the legal limitations on physicians and nurse practitioners acting as health care agents for patients at their own facility. Remote witnessing becomes indispensable in urgent situations, offering a swift and secure solution by employing audio-visual technology, rather than having to wait for the witnesses to physically be present.

Consulting with an experienced elder law attorney is advisable for drafting a health care proxy. An experienced elder law attorney can prepare a health care proxy for you and other essential documents, such as a power of attorney, ensuring they are seamlessly integrated into your overall estate plan.

Nancy Burner, Esq. is the founder and managing partner of Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.