2023 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.
2-a.  Alternate  procedure  for  witnessing  of  health  care proxies.
Witnessing a health care proxy under this  section  may  be  done  using
audio-video  technology, for either or both witnesses, provided that the
following conditions are met  (as  used  in  this  subdivision,  "remote
witness" means a witness acting using audio-visual technology):
(a)  The principal, if not personally known to a remote witness, shall
display valid photographic identification to the remote  witness  during
the audio-video conference;
(b)  The  audio-video  conference  shall  allow for direct interaction
between the principal and any remote witness;
(c) Any remote witness shall receive a legible copy of the health care
proxy, which shall be transmitted via  facsimile  or  electronic  means,
within  twenty-four  hours  of  the  proxy being signed by the principal
during the audio-video conference; and
(d) The remote witness shall sign the transmitted copy of  the  proxy,
and transmit it back to the principal.
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.