NY Pub Health L § 2981 (2021)
2021 New York Laws PBH - Public Health Article 29-C - 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 or psychiatric nurse practitioner.  (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,   nurse practitioner, physician assistant 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,   nurse   practitioner, physician   assistant,  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, physician assistant, or nurse practitioner, subject to the limitation set forth in paragraph (c) of this subdivision, except that no physician or nurse practitioner 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,  physician  assistant, or nurse practitioner is appointed  agent,  the  physician,   physician   assistant,   or   nurse practitioner shall not act as the patient's attending practitioner after the  authority  under  the  health  care  proxy  commences,  unless  the physician,  physician  assistant,  or  nurse  practitioner  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 practitioner has determined in a writing signed by the physician, physician assistant, or nurse practitioner (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 practitioner shall record the change in agent and the reasons therefor in the principal's medical record.