Section 2981 of the New York State Public Health Law provides for the appointment of a health care agent to make health care decision for a person incapable of making such health care decisions for him/herself.
1. Authority to Appoint Health Care Agent.
1.1. A competent adult may appoint a health care agent.
1.2. Every adult shall be presumed competent to appoint a health care agent unless such person has been adjudged incompetent, or unless a committee or guardian of the person has been appointed for the adult.
2. Health Care Proxy.
2.1. 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 the execution of the health care proxy.
2.2. For persons who reside in a mental hygiene facility operated or licensed by the New York State 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, at least one witness shall be a qualified psychiatrist.
2.3. Restrictions on who may be and limitations on a health care agent.
2.3.1. 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.
2.3.2. The restriction in paragraph 2.3.1 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, subject to the limitation set forth in paragraph (c) of this subdivision, 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.
2.3.3. 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, unless the physician declines the appointment as agent at or before such time.
2.3.4. 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.
3. Rights and Duties of Agent.
3.1. A health care agent has the authority to make any and all health care decisions on the principal’s behalf that the principal could make if competent.
3.2. After consultation with a licensed physician, registered nurse, licensed psychologist, licensed master social worker, or a licensed clinical social worker, the agent shall make health care decisions: (a) in accordance with the principal’s wishes, including the principal’s religious and moral beliefs; or (b) 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.
3.3. The health care agent has the right to receive medical information and medical and clinical records necessary to make informed decisions regarding the principal’s health care.
4. Determination of Lack of Capacity to Make Health Care Decisions.
4.1. A determination that a principal lacks capacity to make health care decisions shall be made by the attending physician to a reasonable degree of medical certainty. The determination shall be made in writing and shall contain such attending physician’s opinion regarding the cause and nature of the principal’s incapacity as well as its extent and probable duration. The determination shall be included in the patient’s medical records. For a decision to withdraw or withhold life-sustaining treatment, the attending physician who makes the determination that a principal lacks capacity to make health care decisions must consult with another physician to confirm such determination. Such consultation shall also be included within the patient’s medical record.
4.2. A physician who has been appointed as a patient’s agent shall not make the determination of the patient’s capacity to make health care decisions.
4.3. A determination that a principal lacks capacity to make health care decisions may not be construed as a finding that the patient lacks capacity for any other purpose.
4.4. Where a principal objects to the determination of incapacity or to a health care decision made by an agent, the principal’s objection or decision will prevail unless the principal is determined by a court to lack capacity to make health care decisions.
5. Health Care Provider’s Obligations.
5.1. A health care provider who is provided with a health care proxy shall arrange for the proxy or a copy thereof to be inserted in the principal’s medical record if the health care proxy has not been included in such record.
5.2. A health care provider shall comply with health care decisions made by an agent in good faith under a health care proxy to the same extent as if such decisions had been made by the principal, subject to any limitations in the health care proxy.
5.3. A private hospital is not required to honor an agent’s health care decision that the hospital would not honor if the decision had been made by the principal because the decision is contrary to a formally adopted policy of the hospital that is expressly based on religious beliefs or sincerely held moral convictions central to the facility’s operating principles and the hospital would be permitted by law to refuse to honor the decision if made by the principal, provided:
(a) the hospital has informed the patient or the health care agent of such policy prior to or upon admission, if reasonably possible; and
(b) the patient is transferred promptly to another hospital that is reasonably accessible under the circumstances and is willing to honor the agent’s decision. If the agent is unable or unwilling to arrange such a transfer, the hospital may intervene to facilitate such a transfer. If such a transfer is not effected, the hospital shall seek judicial relief or honor the agent’s decision.
6.1. 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.
6.2. For the purposes of this section, every adult shall be presumed competent unless determined otherwise pursuant to court order.
6.3. A health care proxy shall also be revoked upon execution by the principal of a subsequent health care proxy.
6.4. The creation by the principal of written wishes or instructions about health care, or limitations upon the agent’s authority, shall not revoke a health care proxy unless such wishes, instructions or limitations expressly provide otherwise. Such wishes, instructions or limitations shall constitute evidence of the principal’s wishes for purposes of subdivision two of section two thousand nine hundred eighty-two of this article.
6.5. The appointment of the principal’s spouse as health care agent shall be revoked upon the divorce or legal separation of the principal and spouse, unless the principal specifies otherwise.
7. Form of Health Care Proxy (New York).
7.1. 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.
7.2. The health care proxy may include the principal’s wishes or instructions about health care decisions, and limitations upon the agent’s authority.
7.3. 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.
7.4. A health care proxy may, but need not, be in the following form:
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:
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.
8. 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.
9. A health care proxy may include the principal’s wishes or instructions regarding organ and tissue donation. Failure to state wishes or instructions shall not be construed to imply a wish not to donate.
10. 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 physician has determined in a writing signed by the physician (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 physician shall record the change in agent and the reasons therefor in the principal’s medical record.