2012 New York Consolidated Laws
PBH - Public Health
Article 29-C - (2980 - 2994) HEALTH CARE AGENTS AND PROXIES
2981 - Appointment of health care agent; health care proxy.

 
    §  2981.  Appointment  of  health  care  agent;  health care proxy. 1.
  Authority to appoint agent; presumption of competence. (a)  A  competent
  adult  may  appoint  a health care agent in accordance with the terms of
  this article.
    (b) For the purposes of this section, every adult  shall  be  presumed
  competent  to  appoint  a  health care agent unless such person has been
  adjudged incompetent or otherwise adjudged not competent  to  appoint  a
  health  care  agent, or unless a committee or guardian of the person has
  been appointed for the adult pursuant to article  seventy-eight  of  the
  mental  hygiene  law  or  article  seventeen-A  of the surrogate's court
  procedure act.
    2. Health care proxy; execution; witnesses. (a) A competent adult  may
  appoint  a health care agent by a health care proxy, signed and dated by
  the adult in the presence of two adult witnesses who shall also sign the
  proxy. Another person may sign and date the health care  proxy  for  the
  adult  if  the adult is unable to do so, at the adult's direction and in
  the adult's presence, and in the presence of  two  adult  witnesses  who
  shall  sign  the  proxy.  The  witnesses  shall state that the principal
  appeared to execute the proxy willingly and free from duress. The person
  appointed as agent shall not act as witness to execution of  the  health
  care proxy.
    (b)  For  persons  who reside in a mental hygiene facility operated or
  licensed by the office of mental health, at least one witness  shall  be
  an individual who is not affiliated with the facility and, if the mental
  hygiene  facility  is  also  a hospital as defined in subdivision ten of
  section 1.03 of the mental hygiene law, at least one witness shall be  a
  qualified psychiatrist.
    (c)  For  persons  who reside in a mental hygiene facility operated or
  licensed by the office for people with  developmental  disabilities,  at
  least  one witness shall be an individual who is not affiliated with the
  facility and at least one witness  shall  be  a  physician  or  clinical
  psychologist  who  either  is  employed  by a developmental disabilities
  services office named in section 13.17 of the mental hygiene law or  who
  has  been employed for a minimum of two years to render care and service
  in a facility operated  or  licensed  by  the  office  for  people  with
  developmental  disabilities, or has been approved by the commissioner of
  developmental disabilities in accordance with  regulations  approved  by
  the  commissioner.  Such  regulations  shall require that a physician or
  clinical  psychologist  possess  specialized  training  or  three  years
  experience in treating developmental disabilities.
    3.  Restrictions on who may be and limitations on a health care agent.
  (a) An operator, administrator or employee of  a  hospital  may  not  be
  appointed  as  a health care agent by any person who, at the time of the
  appointment, is a patient or resident of, or has applied  for  admission
  to, such hospital.
    (b)  The  restriction  in  paragraph (a) of this subdivision shall not
  apply to:
    (i) an operator, administrator  or  employee  of  a  hospital  who  is
  related to the principal by blood, marriage or adoption; or
    (ii) a physician, subject to the limitation set forth in paragraph (c)
  of  this  subdivision, except that no physician affiliated with a mental
  hygiene facility or a psychiatric unit of a general hospital  may  serve
  as  agent  for a principal residing in or being treated by such facility
  or unit unless the physician is  related  to  the  principal  by  blood,
  marriage or adoption.
    (c)  If a physician is appointed agent, the physician shall not act as
  the patient's attending physician after the authority under  the  health

  care  proxy  commences, unless the physician declines the appointment as
  agent at or before such time.
    (d) No person who is not the spouse, child, parent, brother, sister or
  grandparent  of  the  principal, or is the issue of, or married to, such
  person, shall be appointed as a health care agent if,  at  the  time  of
  appointment,  he or she is presently appointed health care agent for ten
  principals.
    4. Commencement of agent's  authority.  The  agent's  authority  shall
  commence  upon  a  determination,  made  pursuant  to subdivision one of
  section two thousand nine hundred eighty-three of this article, that the
  principal lacks capacity to make health care decisions.
    5. Contents and form of health care proxy. (a) The health  care  proxy
  shall:
    (i) identify the principal and agent; and
    (ii)  indicate  that the principal intends the agent to have authority
  to make health care decisions on the principal's behalf.
    (b) The health care  proxy  may  include  the  principal's  wishes  or
  instructions  about  health  care  decisions,  and  limitations upon the
  agent's authority.
    (c) The health care proxy may provide that it expires upon a specified
  date or upon the occurrence of a certain condition. If no such  date  or
  condition  is  set  forth in the proxy, the proxy shall remain in effect
  until revoked. If, prior to the expiration of a proxy, the authority  of
  the  agent has commenced, the proxy shall not expire while the principal
  lacks capacity.
    (d) A health care proxy may, but need not, be in the following form:
                               Health Care Proxy
    I             (name of principal)               hereby appoint  (name,
  home  address  and telephone number of agent) as my health care agent to
  make any and all health care decisions for me, except to  the  extent  I
  state otherwise.
    This  health care proxy shall take effect in the event I become unable
  to make my own health care decisions.
    NOTE: Although not necessary, and neither encouraged nor  discouraged,
  you  may  wish  to  state instructions or wishes, and limit your agent's
  authority.  Unless  your  agent  knows  your  wishes  about   artificial
  nutrition  and  hydration,  your agent will not have authority to decide
  about artificial  nutrition  and  hydration.  If  you  choose  to  state
  instructions, wishes, or limits, please do so below:
    ______________________________________________________________________
    ______________________________________________________________________
    ______________________________________________________________________
    I  direct my agent to make health care decisions in accordance with my
  wishes and instructions as stated above or as otherwise known to him  or
  her.  I  also  direct my agent to abide by any limitations on his or her
  authority as stated above or as otherwise known to him or her.
    In the event the person  I  appoint  above  is  unable,  unwilling  or
  unavailable to act as my health care agent, I hereby appoint (name, home
  address  and  telephone  number  of  alternate  agent) as my health care
  agent.
    I understand that, unless I revoke  it,  this  proxy  will  remain  in
  effect  indefinitely  or until the date or occurrence of the condition I
  have stated below:
    (Please complete the following if you do NOT  want  this  health  care
  proxy to be in effect indefinitely):
    This proxy shall expire:           (Specify date or condition)
  Signature:
    Address:

    Date:
    I  declare  that  the  person who signed or asked another to sign this
  document is personally known to me and appears to be of sound  mind  and
  acting  willingly  and  free  from  duress.  He  or she signed (or asked
  another to sign for him or her) this document in my  presence  and  that
  person  signed in my presence. I am not the person appointed as agent by
  this document.
    Witness:
    Address:
    Witness:
    Address:
    (e) The health care proxy shall not be executed on  a  form  or  other
  writing  that  also  includes  the  execution  of  a  power of attorney,
  provided, however, that nothing in this  paragraph  shall  invalidate  a
  delegation of the authority to make health care decisions executed prior
  to the enactment of this article.
    (f)  A  health  care  proxy  may  include  the  principal's  wishes or
  instructions regarding organ and  tissue  donation  and  may  limit  the
  health  care agent's authority to consent to organ or tissue donation or
  designate another person to do so, under  article  forty-three  of  this
  chapter.  Failure to state wishes or instructions shall not be construed
  to imply a wish not to donate.
    6. Alternate agent. (a) A competent adult may designate  an  alternate
  agent in the health care proxy to serve in place of the agent when:
    (i)  the attending physician has determined in a writing signed by the
  physician (A) that the person  appointed  as  agent  is  not  reasonably
  available,  willing  and  competent to serve as agent, and (B) that such
  person is not expected  to  become  reasonably  available,  willing  and
  competent  to  make  a  timely  decision  given  the  patient's  medical
  circumstances;
    (ii) the agent is disqualified from acting on the  principal's  behalf
  pursuant  to  subdivision  three  of  this section or subdivision two of
  section two thousand nine hundred ninety-two of this article, or
    (iii) under conditions set forth in the proxy.
    (b) If, after an alternate agent's  authority  commences,  the  person
  appointed  as agent becomes available, willing and competent to serve as
  agent:
    (i) the authority of the alternate agent shall cease and the authority
  of the agent shall commence; and
    (ii) the attending physician shall record the change in agent and  the
  reasons therefor in the principal's medical record.