§ 2981 — Appointment of health care agent; health care proxy

§ 2981. Appointment of health care agent; health care proxy. 1.\nAuthority to appoint agent; presumption of competence. (a) A competent\nadult may appoint a health care agent in accordance with the terms of\nthis article.\n (b) For the purposes of this section, every adult shall be presumed\ncompetent to appoint a health care agent unless such person has been\nadjudged incompetent or otherwise adjudged not competent to appoint a\nhealth care agent, or unless a guardian of the person has been appointed\nfor the adult pursuant to article eighty-one of the mental hygiene law\nor article seventeen-A of the surrogate's court procedure act.\n 2. Health care proxy; execution; witnesses. (a) A competent adult may\nappoint a health care agent by a health care proxy, signed and dated by\nthe adult in the presence of two adult witnesses who shall also sign the\nproxy. Another person may sign and date the health care proxy for the\nadult if the adult is unable to do so, at the adult's direction and in\nthe adult's presence, and in the presence of two adult witnesses who\nshall sign the proxy. The witnesses shall state that the principal\nappeared to execute the proxy willingly and free from duress. The person\nappointed as agent shall not act as witness to execution of the health\ncare proxy.\n (b) For persons who reside in a mental hygiene facility operated or\nlicensed by the office of mental health, at least one witness shall be\nan individual who is not affiliated with the facility and, if the mental\nhygiene facility is also a hospital as defined in subdivision ten of\nsection 1.03 of the mental hygiene law, at least one witness shall be a\nqualified psychiatrist or psychiatric nurse practitioner.\n (c) For persons who reside in a mental hygiene facility operated or\nlicensed by the office for people with developmental disabilities, at\nleast one witness shall be an individual who is not affiliated with the\nfacility and at least one witness shall be a physician, nurse\npractitioner, physician assistant or clinical psychologist who either is\nemployed by a developmental disabilities services office named in\nsection 13.17 of the mental hygiene law or who has been employed for a\nminimum of two years to render care and service in a facility operated\nor licensed by the office for people with developmental disabilities, or\nhas been approved by the commissioner of developmental disabilities in\naccordance with regulations approved by the commissioner. Such\nregulations shall require that a physician, nurse practitioner,\nphysician assistant, or clinical psychologist possess specialized\ntraining or three years experience in treating developmental\ndisabilities.\n 2-a. Alternate procedure for witnessing of health care proxies.\nWitnessing a health care proxy under this section may be done using\naudio-video technology, for either or both witnesses, provided that the\nfollowing conditions are met (as used in this subdivision, "remote\nwitness" means a witness acting using audio-visual technology):\n (a) The principal, if not personally known to a remote witness, shall\ndisplay valid photographic identification to the remote witness during\nthe audio-video conference;\n (b) The audio-video conference shall allow for direct interaction\nbetween the principal and any remote witness;\n (c) Any remote witness shall receive a legible copy of the health care\nproxy, which shall be transmitted via facsimile or electronic means,\nwithin twenty-four hours of the proxy being signed by the principal\nduring the audio-video conference; and\n (d) The remote witness shall sign the transmitted copy of the proxy,\nand transmit it back to the principal.\n 3. Restrictions on who may be and limitations on a health care agent.\n(a) An operator, administrator or employee of a hospital may not be\nappointed as a health care agent by any person who, at the time of the\nappointment, is a patient or resident of, or has applied for admission\nto, such hospital.\n (b) The restriction in paragraph (a) of this subdivision shall not\napply to:\n (i) an operator, administrator or employee of a hospital who is\nrelated to the principal by blood, marriage or adoption; or\n (ii) a physician, physician assistant, or nurse practitioner, subject\nto the limitation set forth in paragraph (c) of this subdivision, except\nthat no physician or nurse practitioner affiliated with a mental hygiene\nfacility or a psychiatric unit of a general hospital may serve as agent\nfor a principal residing in or being treated by such facility or unit\nunless the physician is related to the principal by blood, marriage or\nadoption.\n (c) If a physician, physician assistant, or nurse practitioner is\nappointed agent, the physician, physician assistant, or nurse\npractitioner shall not act as the patient's attending practitioner after\nthe authority under the health care proxy commences, unless the\nphysician, physician assistant, or nurse practitioner declines the\nappointment as agent at or before such time.\n (d) No person who is not the spouse, child, parent, brother, sister or\ngrandparent of the principal, or is the issue of, or married to, such\nperson, shall be appointed as a health care agent if, at the time of\nappointment, he or she is presently appointed health care agent for ten\nprincipals.\n 4. Commencement of agent's authority. The agent's authority shall\ncommence upon a determination, made pursuant to subdivision one of\nsection two thousand nine hundred eighty-three of this article, that the\nprincipal lacks capacity to make health care decisions.\n 5. Contents and form of health care proxy. (a) The health care proxy\nshall:\n (i) identify the principal and agent; and\n (ii) indicate that the principal intends the agent to have authority\nto make health care decisions on the principal's behalf.\n (b) The health care proxy may include the principal's wishes or\ninstructions about health care decisions, and limitations upon the\nagent's authority.\n (c) The health care proxy may provide that it expires upon a specified\ndate or upon the occurrence of a certain condition. If no such date or\ncondition is set forth in the proxy, the proxy shall remain in effect\nuntil revoked. If, prior to the expiration of a proxy, the authority of\nthe agent has commenced, the proxy shall not expire while the principal\nlacks capacity.\n (d) A health care proxy may, but need not, be in the following form:\n Health Care Proxy\n I (name of principal) hereby appoint (name,\nhome address and telephone number of agent) as my health care agent to\nmake any and all health care decisions for me, except to the extent I\nstate otherwise.\n This health care proxy shall take effect in the event I become unable\nto make my own health care decisions.\n NOTE: Although not necessary, and neither encouraged nor discouraged,\nyou may wish to state instructions or wishes, and limit your agent's\nauthority. Unless your agent knows your wishes about artificial\nnutrition and hydration, your agent will not have authority to decide\nabout artificial nutrition and hydration. If you choose to state\ninstructions, wishes, or limits, please do so below:\n ______________________________________________________________________\n ______________________________________________________________________\n ______________________________________________________________________\n I direct my agent to make health care decisions in accordance with my\nwishes and instructions as stated above or as otherwise known to him or\nher. I also direct my agent to abide by any limitations on his or her\nauthority as stated above or as otherwise known to him or her.\n In the event the person I appoint above is unable, unwilling or\nunavailable to act as my health care agent, I hereby appoint (name, home\naddress and telephone number of alternate agent) as my health care\nagent.\n I understand that, unless I revoke it, this proxy will remain in\neffect indefinitely or until the date or occurrence of the condition I\nhave stated below:\n (Please complete the following if you do NOT want this health care\nproxy to be in effect indefinitely):\n This proxy shall expire: (Specify date or condition)\nSignature:\n Address:\n Date:\n I declare that the person who signed or asked another to sign this\ndocument is personally known to me and appears to be of sound mind and\nacting willingly and free from duress. He or she signed (or asked\nanother to sign for him or her) this document in my presence and that\nperson signed in my presence. I am not the person appointed as agent by\nthis document.\n Witness:\n Address:\n Witness:\n Address:\n (e) The health care proxy shall not be executed on a form or other\nwriting that also includes the execution of a power of attorney,\nprovided, however, that nothing in this paragraph shall invalidate a\ndelegation of the authority to make health care decisions executed prior\nto the enactment of this article.\n (f) A health care proxy may include the principal's wishes or\ninstructions regarding organ and tissue donation and may limit the\nhealth care agent's authority to consent to organ or tissue donation or\ndesignate another person to do so, under article forty-three of this\nchapter. Failure to state wishes or instructions shall not be construed\nto imply a wish not to donate.\n 6. Alternate agent. (a) A competent adult may designate an alternate\nagent in the health care proxy to serve in place of the agent when:\n (i) the attending practitioner has determined in a writing signed by\nthe physician, physician assistant, or nurse practitioner (A) that the\nperson appointed as agent is not reasonably available, willing and\ncompetent to serve as agent, and (B) that such person is not expected to\nbecome reasonably available, willing and competent to make a timely\ndecision given the patient's medical circumstances;\n (ii) the agent is disqualified from acting on the principal's behalf\npursuant to subdivision three of this section or subdivision two of\nsection two thousand nine hundred ninety-two of this article, or\n (iii) under conditions set forth in the proxy.\n (b) If, after an alternate agent's authority commences, the person\nappointed as agent becomes available, willing and competent to serve as\nagent:\n (i) the authority of the alternate agent shall cease and the authority\nof the agent shall commence; and\n (ii) the attending practitioner shall record the change in agent and\nthe reasons therefor in the principal's medical record.\n