A living will is a written statement of the medical treatment you would or would not want if you become unable to decide for yourself. New York has no official living will form, but the State Department of Health says it recognizes living wills that give “clear and convincing evidence” of your wishes. A health care proxy names the person who decides for you, and a MOLST turns wishes into medical orders for people with serious illness.
What does “advance directive” mean in New York?
An advance directive is a set of written instructions about health care, made by an adult before they lose the ability to decide. Advance care planning is for anyone over 18. The Department of Health’s advance care planning FAQ says it may include a health care proxy form, a nonhospital order not to resuscitate (DNR) and a Medical Orders for Life-Sustaining Treatment (MOLST) form. A living will is the fourth piece: a written statement of your wishes.
People often mix these documents up with a financial power of attorney. They are different. The health care proxy form does not give anyone power over money, and the Public Health Law does not allow a proxy to be combined with a power of attorney on the same form. Our guides explain health care proxy versus power of attorney and power of attorney and guardianship.
What is a living will, and does New York recognize it?
The Department of Health describes a living will as a written statement of your specific health care wishes in case you become unable to decide for yourself. New York does not have a standard living will form. It recognizes living wills as valid if they provide “clear and convincing evidence” of what the person wanted.
The Department’s MOLST FAQ says the evidence has to show the person held a firm and settled commitment about treatment in circumstances like the current ones. It can be a written living will, earlier spoken statements, or both. Things that weigh in its favor include:
- specific statements about situations like the current one, rather than general remarks
- statements made consistently, seriously and to more than one person close to the patient
The weakness of a living will is that it cannot cover every situation, and the Department says living wills typically hold general instructions that EMS and other practitioners cannot follow in an emergency. That is why the proxy and, for some people, the MOLST matter.
Living will, health care proxy, MOLST and DNR: what is the difference?
| Document | What it does | Who completes it | When it applies |
|---|---|---|---|
| Health care proxy | Names a health care agent to decide for you | You, with two adult witnesses; no lawyer or notary needed | Only after your doctor decides you cannot make your own decisions |
| Living will | States your own wishes about treatment | You; no standard New York form | Only when you lose capacity; must show your wishes clearly |
| MOLST (DOH-5003) | Medical orders: CPR, intubation, hospital transfer, feeding tube, antibiotics, dialysis | You or your agent consents; a physician, nurse practitioner or physician assistant signs | As soon as the consent is given and the order is signed |
| Nonhospital DNR (DOH-3474) | Order that EMS will not start CPR | A physician, nurse practitioner or physician assistant signs | Once signed; reviewed at least every 90 days |
The Department states that the MOLST complements the proxy and living will rather than replacing them. A proxy and a living will apply only after a person loses capacity. A MOLST applies as soon as the patient consents and the practitioner signs. Details are in the Health Care Proxy form and instructions.
Who can be your health care agent?
Any adult aged 18 or older can be your agent or alternate agent, according to the Health Care Proxy form. Rules to know:
- Your agent and alternate cannot be witnesses.
- A doctor can be your agent but cannot also act as your attending doctor, and a hospital or nursing home employee generally cannot be named if you are a patient there (relatives are an exception). Public Health Law section 2981 sets this out.
- A spouse stops being your agent after divorce or legal separation unless you say otherwise.
- Your agent follows your wishes, including your religious and moral beliefs, and decides in your best interests only if they are not known.
- Feeding tube decisions need known wishes. Your agent can decide about artificial nutrition and hydration only if they know what you would want.
How do you complete a health care proxy in New York?
You do not need a lawyer or a notary, and you do not have to use the Department’s form, although most people do.
- Talk first. Ask the person if they are willing, and tell them what matters to you about treatment and life support. The Department’s guidance on choosing an agent suggests thinking through your values before you decide.
- Get the form. The Department offers a fillable PDF with instructions in English and many other languages.
- Fill in the agent and an optional alternate. Write names, home addresses and phone numbers.
- Add instructions or limits if you want. Without limits, your agent can make any health care decision you could have made. Your agent must follow instructions you write.
- Sign and date it in front of two adult witnesses. They confirm you appeared to sign willingly. If you cannot sign, someone else may sign at your direction and in your presence. The statute also allows remote witnessing in set circumstances.
- Share copies. Give one to your agent, your doctor and your attorney if you have one, and carry a copy.
The proxy stays valid indefinitely unless you set an expiration. You can cancel it by telling your agent or a health care provider, orally or in writing, and signing a new proxy revokes the earlier one (Public Health Law section 2985). The Department suggests updating it every few years and after life events such as marriage, divorce or a new diagnosis.
What is a MOLST form, and who is it for?
MOLST stands for Medical Orders for Life-Sustaining Treatment, and the form number is DOH-5003. The Department says it is generally for patients with serious health conditions who want to avoid or receive any or all life-sustaining treatment, live in a long-term care facility or need long-term care services, or might die within the next year. Completing it is voluntary and cannot be required.
The DOH-5003 form covers CPR and intubation, treatment limits, hospital transfer, feeding tube, IV fluids, antibiotics and dialysis. Several practical points come from the Department’s MOLST FAQ:
| Question | Answer from the Department of Health |
|---|---|
| Who fills it out? | After a conversation with a trained professional; a physician, nurse practitioner or physician assistant must discuss prognosis and goals, and sign |
| Who consents? | The patient, or if they cannot decide, a health care agent or an authorized surrogate |
| Can consent be spoken? | Yes, with two adult witnesses documented; without them the MOLST is not legal |
| What if sections are left blank? | Those treatments will be provided in full, as necessary |
| Must it be pink? | No. White copies and scans are valid; a stamped signature is not |
| How often is it reviewed? | At least every 90 days and when the person moves between settings or their health or wishes change; it stays valid even if a review is late |
| Can it be changed? | Yes, with informed consent of the patient or, if the patient cannot decide, the agent or surrogate |
What about DNR and DNI orders?
A nonhospital DNR means emergency medical services will not begin CPR, which includes chest compressions, electric shock, a breathing tube and medication to restart the heart. The advance care planning FAQ says it is commonly used for someone with a serious condition, advanced age or terminal illness, such as advanced cancer, heart failure, COPD or dementia, and it must be signed by a health care provider.
The Department’s one-page Nonhospital Order Not to Resuscitate (DOH-3474) records a DNR only. The MOLST page says state law makes the MOLST the only authorized form for documenting both nonhospital DNR and DNI (do not intubate) orders. Ask the doctor which form fits your situation.
What if someone has dementia or never signed anything?
The Department notes that capacity depends on the task: the ability to choose a health care agent is different from the ability to make complicated medical decisions. Whether a person with dementia can sign a proxy today is a question for their doctor and, often, an elder law attorney.
If there is no health care agent and the person loses capacity, New York’s Family Health Care Decisions Act picks a surrogate in this order of priority, from Public Health Law section 2994-d:
| Priority | Who |
|---|---|
| 1 | A guardian authorized to decide about health care (Mental Hygiene Law Article 81) |
| 2 | The spouse, if not legally separated, or the domestic partner |
| 3 | A son or daughter aged 18 or older |
| 4 | A parent |
| 5 | A brother or sister aged 18 or older |
| 6 | A close friend |
The rules differ by setting. In the community, a surrogate can consent to a nonhospital DNR or DNI, but other orders to withhold treatment need clear and convincing evidence of the person’s wishes. Our dementia care at home guide covers the care side.
Where should you keep these documents?
| Document | Where to keep it | Who should have a copy |
|---|---|---|
| Health care proxy | With important papers or a wallet copy, not in a place no one can open, such as a safe deposit box | Agent, doctor, attorney, family; bring one to any hospital stay |
| Living will | At home | Agent and all health care providers |
| MOLST or DNR at home | On the refrigerator, by the kitchen phone or at the bedside, where EMS are trained to look | Doctor’s office and the home care agency; the original travels with the person between settings |
| DNR while out | Carry it, or wear a DNR bracelet or necklace | Anyone you are traveling or staying with |
How do home care agencies and aides handle advance directives?
Federal rule 42 CFR 489.102 requires home health agencies and Medicaid personal care providers to give adults written information about their rights to make care decisions, including advance directives, before care begins. They must document whether the person has an advance directive and may not make care depend on having one. The regulation text is public.
The Department’s MOLST FAQ says that when a person leaves a facility, a copy of the MOLST should go to the primary care provider and to the home care agency if the person receives home care. The Department also says a DNR, DNI or other order on a MOLST must be followed in community settings such as a home, and that EMS are trained to look for the form.
A home health aide follows the care plan, and these are medical orders and legal decisions, not tasks for an aide to interpret. When you choose a home care agency, you can:
- Give the agency copies of the proxy, living will, MOLST or DNR, and say where the originals are kept.
- Ask what staff are told to do in an emergency when a MOLST or DNR is in the home.
- If the person is near the end of life, ask the doctor about palliative or hospice care, and read our guides to palliative and hospice care and end-of-life support at home.
When should you ask a doctor or an elder law attorney?
Ask the person’s doctor about a MOLST or DNR, since a physician, nurse practitioner or physician assistant has to sign it. Ask an elder law attorney if the family disagrees, the person may lack capacity, you may need a guardian, or you want a living will drafted for your circumstances.
We are a licensed home care agency in Brooklyn and Queens, licence #2572L001, New York State Department of Health. We are not a law firm. If you are arranging home care for someone who has these documents, call (718) 232-2777 or use our contact page.
Forms and rules change. Everything above was checked on 12 October 2026 against health.ny.gov, nysenate.gov and ecfr.gov. Confirm your own situation with the person’s doctor or an elder law attorney. This page is general information, not medical or legal advice.
Frequently asked questions
What is a living will?
A living will is a written statement of your specific health care wishes if you become unable to decide for yourself. New York has no standard form but recognizes a living will if it gives clear and convincing evidence of your wishes.
What does advance directive mean?
It means written instructions about health care made by an adult before losing the ability to decide. In New York it can include a health care proxy, a nonhospital DNR and a MOLST, and a living will states wishes in writing.
Do I need a lawyer to make a health care proxy?
No. You need two adult witnesses, and your agent cannot be one of them. A lawyer or notary is not required, though an elder law attorney can help in complicated situations.
Is a MOLST the same as a living will?
No. A living will states wishes and applies after you lose capacity. A MOLST is a signed medical order for people with serious illness, which applies once the patient or decision-maker consents and a practitioner signs.
Who needs a MOLST form?
Generally patients with serious conditions who want to avoid or receive life-sustaining treatment, need long-term care, or might die within a year. It is voluntary, and the doctor, nurse practitioner or physician assistant completes it with the patient.
Will EMS follow a living will or a health care proxy?
No. The Department of Health says these documents cannot be followed by EMS in an emergency. A MOLST or nonhospital DNR is the signed order they act on, so keep it where they can see it.
Can I change or cancel a health care proxy?
Yes. You can cancel by telling your agent or a health care provider orally or in writing, or by signing a new proxy. Divorce or legal separation ends a spouse’s role as agent unless you state otherwise.
