Mutual Wills or Last Will and Testaments for Man and Woman living together, not Married with Minor Children
Note: This law summary is not intended
to be all inclusive of the law of wills in New York, but does provide basic
and other information. It does not include a discussion of handwritten
wills.
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE NEW YORK CONSOLIDATED LAWS
HEALTH CARE PROXY
(Chapter 45, Article 29-C, §§ 2980 through 2994)
Selected Definitions
An "adult" is any person who is eighteen years of age or older, or is the parent of a child, or has married.
An "attending physician" is the physician, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient.
"Capacity to make health care decisions" is the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.
Health care" is any treatment, service or procedure to diagnose or treat an individual's physical or mental condition.
A "health care agent" or "agent" is an adult to whom authority to make health care decisions is delegated under a health care proxy.
A "health care decision" is any decision to consent or refuse to consent to health care.
A "health care proxy" is a document delegating the authority to make health care decisions, executed in accordance with the statutory requirements.
"Mental illness" is a mental illness as defined in subdivision twenty, § 1.03 Mental Hyg. of the mental hygiene law. Provided, however, that mental illness does not include dementia, such as alzheimer's disease or other disorders related to dementia.
A "principal" is a person who has executed a health care proxy.
Appointment of Agent
A competent adult may appoint a health care agent in accordance with the statutory requirements.
An adult is 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.
Execution and Witnesses
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. The witnesses must 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 must also sign the proxy.
The witnesses must 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.
If a person resides in a mental hygiene facility operated or licensed by the office of mental health, at least one witness must 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 § 1.03 Mental Hyg. of the mental hygiene law, at least one witness shall be a qualified psychiatrist.
If a person resides in a mental hygiene facility operated or licensed by the office of mental retardation and developmental disabilities, at least one witness must be an individual who is not affiliated with the facility and at least one witness shall be a physician or clinical psychologist who is either employed by a school named in section 13.17 Mental Hyg. 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 of mental retardation and developmental disabilities, or who has been approved by the commissioner of mental retardation and developmental disabilities in accordance with regulations approved by the commissioner.
Restrictions and Limitations on a Health Care Agent.
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. This restriction does not apply to:
<blockquote>an operator, administrator or employee of a hospital who is related to the principal by blood, marriage or adoption; or
a physician (subject to the limitation set forth below), 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.</blockquote>
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.
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.
Form
The statutory form is not required. However, any health care proxy must:
<blockquote>identify the principal and agent; and
indicate that the principal intends the agent to have authority to make health care decisions on the principal's behalf.</blockquote>
A health care proxy may include the principal's wishes or instructions about health care decisions, and limitations upon the agent's authority; 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.
A health care proxy cannot be executed on a form or other writing that also includes the execution of a power of attorney.
Agent's Authority
An agent's authority commences upon a determination that the principal lacks capacity to make health care decisions.
Alternate Agent
A competent adult may designate an alternate agent in the health care proxy to serve in place of the agent when the attending physician has determined in a writing signed by the physician that:
<blockquote>the person appointed as agent is not reasonably available, willing and competent to serve as agent, and
that such person is not expected to become reasonably available, willing and competent to make a timely decision given the patient's medical circumstances.</blockquote>
An agent may be disqualified from acting on the principal's behalf pursuant to statutory provisions or under conditions set forth in the proxy.
If, after an alternate agent's authority commences, the person appointed as the initial agent becomes available, willing and competent to serve as agent:
<blockquote>the authority of the alternate agent shall cease and the authority of the agent shall commence; and
the attending physician shall record the change in agent and the reasons therefor in the principal's medical record.</blockquote>
Obligations and Rights of Agent
Subject to any express limitations in the health care proxy, an agent has the authority to make any and all health care decisions on the principal's behalf that the principal could make.<br />
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After consultation with a licensed physician, registered nurse, licensed clinical psychologist or certified social worker, an agent shall make health care decisions:<br />
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in accordance with the principal’s wishes, including the principal’s religious and moral beliefs; or<br />
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if the principal’s wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal’s best interests; provided, however, that if the principal’s wishes regarding the administration of artificial nutrition and hydration are not reasonably known and cannot with reasonable diligence be ascertained, the agent shall not have the authority to make decisions regarding these measures.<br />
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An agent has the right to receive medical information and medical and clinical records necessary to make informed decisions regarding the principal’s health care.<br />
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Revocation<br />
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A competent adult may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy.<br />
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A health care proxy may be revoked upon execution by the principal of a subsequent health care proxy.<br />
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The appointment of the principal’s spouse as health care agent is automatically revoked upon the divorce or legal separation of the principal and spouse, unless the principal specifies otherwise.<br />
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A physician who is informed of or provided with a revocation of a health care proxy must immediately record the revocation in the principal’s medical record and notify the agent and the medical staff responsible for the principal’s care of the revocation.
