Date: December 19, 2023Attorney: Richard I. Miller and Dan Stone

A health care agent is the person you designate to make medical decisions on your behalf in the event you are unable to make such decisions yourself. Appointing a trusted friend or family member as your agent ensures your health care providers follow your wishes. For example, a Health Care Proxy can authorize the implementation of medical services, including the removal of life-sustaining treatment.

A health care agent is appointed by an individual executing a Health Care Proxy. Historically, to be effective, the Health Care Proxy required an individual to sign in the physical presence of two witnesses.  However, on November 17, 2023, New York Governor, Kathy Hochul, signed an amendment to Public Health Law Sec. 2981, which allows Health Care Proxies to be executed and witnessed remotely, using audio-video technology.

To do so, the principal, if not known personally by the witnesses, must display their photo ID to the camera. Then, the principal must sign the Proxy during the audio-video conference. The remote witnesses must receive a legible copy of the signed document by fax or other electronic means within 24 hours. Finally, the witnesses must sign the Proxy and send it back to the principal.    

In a similar vein, legislation has been introduced in New Jersey to allow Last Will and Testaments to be witnessed and notarized by those in the “electronic presence,” of the testator. This bill has been pending since 2022. It remains unclear if this legislation will be passed and, if so, in what form.

In advancing the laws described above, New York and New Jersey are following the legal trend to adapt to the widespread use of audio-video technology. As remote witnessing and execution of documents becomes more common, legal disputes surrounding the signing process are likely to arise.  In this changing landscape, it is especially important to consult a qualified attorney in the preparation and execution of your estate planning documents.

The Elder Law attorneys at Mandelbaum Barrett PC are here to assist with any questions you may have.