Health Care Proxy Health Care Decisions Statutory Form including Living Will Provisions
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:
- 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.
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:
- 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.
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:
- 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.
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:
- 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.
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.
After consultation with a licensed physician, registered nurse,
licensed clinical psychologist or certified social worker, an agent shall
make health care decisions:
- in accordance with the principal's wishes, including the principal's
religious and moral beliefs; or
- 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.
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.
Revocation
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.
A health care proxy may be revoked upon execution by the principal
of a subsequent health care proxy.
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.
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.
