N.Y. Public Health Law § 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 guardian of the person has been appointed

for the adult pursuant to article eighty-one 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.