S T A T E O F N E W Y O R K
________________________________________________________________________
1926
2009-2010 Regular Sessions
I N S E N A T E
February 10, 2009
___________
Introduced by Sen. DUANE -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to executing living
wills and establishing a health care representative to make health
care decisions when a health care agent has not been appointed or
living will has not been created
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The article heading of article 29-C of the public health
law, as added by chapter 752 of the laws of 1990, is amended to read as
follows:
HEALTH CARE AGENTS [AND], PROXIES,
HEALTH CARE REPRESENTATIVES AND LIVING WILLS
S 2. Section 2980 of the public health law is amended by adding three
new subdivisions 3-a, 6-a and 9-a to read as follows:
3-A. "END-STAGE MEDICAL CONDITION" MEANS AN INCURABLE AND IRREVERS-
IBLE MEDICAL CONDITION IN AN ADVANCED STATE CAUSED BY INJURY, DISEASE OR
PHYSICAL ILLNESS THAT WILL, IN THE OPINION OF THE ATTENDING PHYSICIAN TO
A REASONABLE DEGREE OF MEDICAL CERTAINTY, RESULT IN DEATH, DESPITE THE
INTRODUCTION OR CONTINUATION OF MEDICAL TREATMENT. EXCEPT AS SPECIF-
ICALLY SET FORTH IN AN ADVANCE HEALTH CARE DIRECTIVE, SUCH TERM IS NOT
INTENDED TO PRECLUDE TREATMENT OF A DISEASE, ILLNESS OR PHYSICAL,
MENTAL, COGNITIVE OR INTELLECTUAL CONDITION, EVEN IF INCURABLE AND IRRE-
VERSIBLE AND REGARDLESS OF SEVERITY, IF BOTH OF THE FOLLOWING APPLY:
(A) THE PATIENT WOULD BENEFIT FROM THE MEDICAL TREATMENT, INCLUDING
PALLIATIVE CARE.
(B) SUCH TREATMENT WOULD NOT MERELY PROLONG THE PROCESS OF DYING.
6-A. "HEALTH CARE REPRESENTATIVE" MEANS AN INDIVIDUAL AUTHORIZED UNDER
SECTION TWENTY-NINE HUNDRED EIGHTY-TWO-A OF THIS ARTICLE TO MAKE HEALTH
CARE DECISIONS FOR A PRINCIPAL.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01370-01-9
S. 1926 2
9-A. "LIVING WILL" MEANS A LEGAL DOCUMENT IN WHICH A COMPETENT ADULT
STATES, IN ADVANCE OF FINAL ILLNESS OR INJURY, HIS OR HER WISHES REGARD-
ING THE USE OF MEDICAL PROCEDURES AND EQUIPMENT DESIGNED TO EXTEND
LIFE.
S 3. The public health law is amended by adding a new section 2981-a
to read as follows:
S 2981-A. LIVING WILLS; EXECUTION; FORM. 1. A COMPETENT ADULT MAY
EXECUTE A LIVING WILL, SIGNED AND DATED BY THE ADULT IN THE PRESENCE OF
A NOTARY AND TWO ADULT WITNESSES WHO SHALL ALSO SIGN THE WILL. ANOTHER
PERSON MAY SIGN AND DATE THE LIVING WILL 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 WILL. THE
TWO WITNESSES SHALL STATE THAT THE PRINCIPAL APPEARED TO EXECUTE THE
PROXY WILLINGLY AND FREE FROM DURESS.
2. (A) 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.
(B) FOR PERSONS WHO RESIDE IN A MENTAL HYGIENE FACILITY OPERATED OR
LICENSED BY THE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILI-
TIES, AT LEAST ONE WITNESS SHALL BE AN INDIVIDUAL WHO IS NOT AFFILIATED
WITH THE FACILITY AND AT LEAST ONE WITNESS SHALL BE A PHYSICIAN OR CLIN-
ICAL PSYCHOLOGIST WHO EITHER IS EMPLOYED BY A SCHOOL 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 OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILI-
TIES, OR WHO HAS BEEN APPROVED BY THE COMMISSIONER OF MENTAL RETARDATION
AND DEVELOPMENTAL DISABILITIES IN ACCORDANCE WITH REGULATIONS APPROVED
BY THE COMMISSIONER. SUCH REGULATIONS SHALL REQUIRE THAT A PHYSICIAN OR
CLINICAL PSYCHOLOGIST POSSESS SPECIALIZED TRAINING OR THREE YEARS EXPE-
RIENCE IN TREATING DEVELOPMENTAL DISABILITIES.
3.(A) A LIVING WILL SHALL INCLUDE: (I) THE IDENTITY OF THE PRINCIPAL;
(II) THE HEALTH CARE DECISIONS OF THE PRINCIPAL IF AND WHEN THE PRINCI-
PAL BECOMES PERMANENTLY UNABLE TO PARTICIPATE IN SUCH FINAL HEALTH CARE
DECISIONS IN THE FUTURE; (III) THE DULY NOTARIZED SIGNATURE OF THE PRIN-
CIPAL; AND (IV) THE SIGNATURE AND STATEMENT OF TWO ADULT WITNESSES.
(B) A LIVING WILL MAY, BUT NEED NOT, BE IN THE FOLLOWING FORM:
NEW YORK LIVING WILL
I, , BEING OF SOUND MIND, MAKE THIS STATEMENT
AS A DIRECTIVE TO BE FOLLOWED IF I BECOME PERMANENTLY UNABLE TO PARTIC-
IPATE IN DECISIONS REGARDING MY MEDICAL CARE. THESE INSTRUCTIONS
REFLECT MY FIRM AND SETTLED COMMITMENT TO DECLINE MEDICAL TREATMENT
UNDER THE CIRCUMSTANCES INDICATED BELOW:
I DIRECT MY ATTENDING PHYSICIAN TO WITHHOLD OR WITHDRAW TREATMENT THAT
MERELY PROLONGS MY DYING, IF I SHOULD BE IN AN INCURABLE OR IRREVERSIBLE
MENTAL OR PHYSICAL CONDITION WITH NO REASONABLE EXPECTATION OF RECOVERY,
INCLUDING BUT NOT LIMITED TO: (A) A TERMINAL CONDITION; (B) A PERMANENT-
LY UNCONSCIOUS CONDITION; OR (C) MINIMALLY CONSCIOUS CONDITION IN WHICH
I AM PERMANENTLY UNABLE TO MAKE DECISIONS OR EXPRESS MY WISHES.
I DIRECT THAT MY TREATMENT BE LIMITED TO MEASURES TO KEEP ME COMFORTA-
BLE AND TO RELIEVE PAIN, INCLUDING ANY PAIN THAT MIGHT OCCUR BY WITH-
HOLDING OR WITHDRAWING TREATMENT.
S. 1926 3
WHILE I UNDERSTAND THAT I AM NOT LEGALLY REQUIRED TO BE SPECIFIC ABOUT
FUTURE TREATMENTS IF I AM IN THE CONDITION(S) DESCRIBED ABOVE I FEEL
ESPECIALLY STRONGLY ABOUT THE FOLLOWING FORMS OF TREATMENT:
( ) I DO/( ) I DO NOT WANT CARDIAC RESUSCITATION. ________ INITIAL
( ) I DO/( ) I DO NOT WANT MECHANICAL RESUSCITATION. _______ INITIAL
( ) I DO/( ) I DO NOT WANT ARTIFICIAL NUTRITION AND HYDRATION.
________ INITIAL
( ) I DO/( ) I DO NOT WANT ANTIBIOTICS. _______ INITIAL
( ) I DO/( ) I DO NOT WANT MAXIMUM PAIN RELIEF, EVEN IF IT MAY HASTEN
MY DEATH. ________ INITIAL OTHER DIRECTIONS:
THESE DIRECTIONS EXPRESS MY LEGAL RIGHT TO REFUSE TREATMENT, UNDER THE
LAW OF NEW YORK. I INTEND MY INSTRUCTIONS TO BE CARRIED OUT, UNLESS I
HAVE RESCINDED THEM IN A NEW WRITING OR BY CLEARLY INDICATING THAT I
HAVE CHANGED MY MIND.
SIGNED ___________________ DATE ___________________________ ADDRESS
________________________________________________________________________
I DECLARE THAT THE PERSON WHO SIGNED THIS DOCUMENT APPEARED TO EXECUTE
THE LIVING WILL WILLINGLY AND FREE FROM DURESS. HE OR SHE SIGNED (OR
ASKED ANOTHER TO SIGN FOR HIM OR HER) THIS DOCUMENT IN MY PRESENCE.
WITNESS 1 _________________________________________________________
ADDRESS ___________________________________________________________
WITNESS 2 _________________________________________________________
ADDRESS ___________________________________________________________
S 4. The public health law is amended by adding a new section 2982-a
to read as follows:
S 2982-A. APPOINTMENT OF HEALTH CARE REPRESENTATIVE; RIGHTS AND
DUTIES. 1. A HEALTH CARE REPRESENTATIVE MAY MAKE A HEALTH CARE DECISION
FOR AN INDIVIDUAL WHOSE ATTENDING PHYSICIAN HAS DETERMINED THAT THE
INDIVIDUAL IS INCOMPETENT IF:
(A) THE INDIVIDUAL IS AT LEAST EIGHTEEN YEARS OF AGE, HAS GRADUATED
FROM HIGH SCHOOL, HAS MARRIED OR IS AN EMANCIPATED MINOR;
(B) (I) THE INDIVIDUAL DOES NOT HAVE A HEALTH CARE POWER OF ATTORNEY;
OR
(II) THE INDIVIDUAL'S HEALTH CARE AGENT IS NOT REASONABLY AVAILABLE OR
HAS INDICATED AN UNWILLINGNESS TO ACT AND NO ALTERNATE HEALTH CARE AGENT
IS REASONABLY AVAILABLE; AND
(C) A GUARDIAN OF THE PERSON TO MAKE HEALTH CARE DECISIONS HAS NOT
BEEN APPOINTED FOR THE INDIVIDUAL.
2. THIS SECTION APPLIES TO DECISIONS REGARDING TREATMENT, CARE, GOODS
OR SERVICES THAT A CARETAKER IS OBLIGATED TO PROVIDE TO A CARE-DEPENDENT
PERSON WHO HAS AN END-STAGE MEDICAL CONDITION OR IS PERMANENTLY UNCON-
SCIOUS.
3. THE AUTHORITY AND THE DECISION-MAKING PROCESS OF A HEALTH CARE
REPRESENTATIVE SHALL BE THE SAME AS PROVIDED FOR A HEALTH CARE AGENT IN
SECTION TWENTY-NINE HUNDRED EIGHTY-TWO OF THIS ARTICLE.
4. (A) AN INDIVIDUAL OF SOUND MIND MAY, BY A SIGNED WRITING OR BY
PERSONALLY INFORMING THE ATTENDING PHYSICIAN OR THE HEALTH CARE PROVID-
ER, DESIGNATE ONE OR MORE INDIVIDUALS TO ACT AS HEALTH CARE REPRESEN-
TATIVE. IN THE ABSENCE OF A DESIGNATION OR IF NO DESIGNEE IS REASONABLY
AVAILABLE ANY MEMBER OF THE FOLLOWING CLASSES, IN DESCENDING ORDER OF
PRIORITY, WHO IS REASONABLY AVAILABLE, MAY ACT AS HEALTH CARE REPRESEN-
TATIVE:
(I) THE SPOUSE OR DOMESTIC PARTNER, UNLESS AN ACTION FOR DIVORCE IS
PENDING, AND THE ADULT CHILDREN OF THE PRINCIPAL WHO ARE NOT THE CHIL-
DREN OF THE SPOUSE.
(II) AN ADULT CHILD.
S. 1926 4
(III) A PARENT.
(IV) AN ADULT BROTHER OR SISTER.
(V) AN ADULT GRANDCHILD.
(VI) AN ADULT WHO HAS KNOWLEDGE OF THE PRINCIPAL'S PREFERENCES AND
VALUES, INCLUDING, BUT NOT LIMITED TO, RELIGIOUS AND MORAL BELIEFS, TO
ASSESS HOW THE PRINCIPAL WOULD MAKE HEALTH CARE DECISIONS.
(B) AN INDIVIDUAL MAY BY SIGNED WRITING, INCLUDING A HEALTH CARE POWER
OF ATTORNEY, PROVIDE FOR A DIFFERENT ORDER OF PRIORITY.
(C) AN INDIVIDUAL WITH A HIGHER PRIORITY WHO IS WILLING TO ACT AS A
HEALTH CARE REPRESENTATIVE MAY ASSUME THE AUTHORITY TO ACT NOTWITH-
STANDING THE FACT THAT ANOTHER INDIVIDUAL HAS PREVIOUSLY ASSUMED THAT
AUTHORITY.
5. AN INDIVIDUAL MAY DISQUALIFY ONE OR MORE INDIVIDUALS FROM ACTING AS
HEALTH CARE REPRESENTATIVE BY A HEALTH CARE POWER OF ATTORNEY. UPON THE
PETITION OF ANY MEMBER OF THE CLASSES SET FORTH IN SUBDIVISION FOUR OF
THIS SECTION, THE COURT MAY DISQUALIFY FOR CAUSE SHOWN AN INDIVIDUAL
OTHERWISE ELIGIBLE TO SERVE AS A HEALTH CARE REPRESENTATIVE.
6. UNLESS RELATED BY BLOOD, MARRIAGE, DOMESTIC PARTNERSHIP OR
ADOPTION, A HEALTH CARE REPRESENTATIVE MAY NOT BE THE PRINCIPAL'S
ATTENDING PHYSICIAN OR OTHER HEALTH CARE PROVIDER, NOR AN OWNER, OPERA-
TOR OR EMPLOYEE OF A HEALTH CARE PROVIDER IN WHICH THE PRINCIPAL
RECEIVES CARE.
7. (A) IF MORE THAN ONE MEMBER OF A CLASS ASSUMES AUTHORITY TO ACT AS
A HEALTH CARE REPRESENTATIVE, THE MEMBERS DO NOT AGREE ON A HEALTH CARE
DECISION AND THE ATTENDING PHYSICIAN OR HEALTH CARE PROVIDER IS SO
INFORMED, THE ATTENDING PHYSICIAN OR HEALTH CARE PROVIDER MAY RELY ON
THE DECISION OF A MAJORITY OF THE MEMBERS OF THAT CLASS WHO HAVE COMMU-
NICATED THEIR VIEWS TO THE ATTENDING PHYSICIAN OR HEALTH CARE PROVIDER.
(B) IF THE MEMBERS OF THE CLASS OF HEALTH CARE REPRESENTATIVES ARE
EVENLY DIVIDED CONCERNING THE HEALTH CARE DECISION AND THE ATTENDING
PHYSICIAN OR HEALTH CARE PROVIDER IS SO INFORMED, AN INDIVIDUAL HAVING A
LOWER PRIORITY MAY NOT ACT AS A HEALTH CARE REPRESENTATIVE. SO LONG AS
THE CLASS REMAINS EVENLY DIVIDED, NO DECISION SHALL BE DEEMED MADE UNTIL
SUCH TIME AS THE PARTIES RESOLVE THEIR DISAGREEMENT. NOTWITHSTANDING
SUCH DISAGREEMENT, NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO
PRECLUDE THE ADMINISTRATION OF HEALTH CARE TREATMENT IN ACCORDANCE WITH
ACCEPTED STANDARDS OF MEDICAL PRACTICE.
8. PROMPTLY UPON ASSUMING AUTHORITY TO ACT, A HEALTH CARE REPRESEN-
TATIVE SHALL COMMUNICATE THE ASSUMPTION OF AUTHORITY TO THE MEMBERS OF
THE PRINCIPAL'S FAMILY SPECIFIED IN SUBDIVISION FOUR OF THIS SECTION WHO
CAN BE READILY CONTACTED.
9. (A) A PRINCIPAL OF SOUND MIND MAY COUNTERMAND ANY HEALTH CARE DECI-
SION MADE BY THE PRINCIPAL'S HEALTH CARE REPRESENTATIVE AT ANY TIME AND
IN ANY MANNER BY PERSONALLY INFORMING THE ATTENDING PHYSICIAN OR HEALTH
CARE PROVIDER.
(B) REGARDLESS OF THE PRINCIPAL'S MENTAL OR PHYSICAL CAPACITY, A PRIN-
CIPAL MAY COUNTERMAND A HEALTH CARE DECISION MADE BY THE PRINCIPAL'S
HEALTH CARE REPRESENTATIVE THAT WOULD WITHHOLD OR WITHDRAW LIFE-SUSTAIN-
ING TREATMENT AT ANY TIME AND IN ANY MANNER BY PERSONALLY INFORMING THE
ATTENDING PHYSICIAN.
(C) THE ATTENDING PHYSICIAN OR HEALTH CARE PROVIDER SHALL MAKE REASON-
ABLE EFFORTS TO PROMPTLY INFORM THE HEALTH CARE REPRESENTATIVE OF A
COUNTERMAND EXERCISED UNDER THIS SECTION.
(D) A COUNTERMAND EXERCISED UNDER THIS SECTION SHALL NOT AFFECT THE
AUTHORITY OF THE HEALTH CARE REPRESENTATIVE TO MAKE OTHER HEALTH CARE
DECISIONS.
S. 1926 5
10. A HEALTH CARE DECISION MADE BY A HEALTH CARE REPRESENTATIVE FOR A
PRINCIPAL SHALL BE EFFECTIVE WITHOUT COURT APPROVAL.
11. AN ATTENDING PHYSICIAN OR HEALTH CARE PROVIDER MAY REQUIRE A
PERSON CLAIMING THE RIGHT TO ACT AS HEALTH CARE REPRESENTATIVE FOR A
PRINCIPAL TO PROVIDE A WRITTEN DECLARATION MADE UNDER PENALTY OF PERJURY
STATING FACTS AND CIRCUMSTANCES REASONABLY SUFFICIENT TO ESTABLISH THE
CLAIMED AUTHORITY.
S 5. Subdivision 1 of section 2984 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
1. A health care provider who is provided with a health care proxy OR
LIVING WILL shall arrange for [the proxy or] a copy thereof to be
inserted in the principal's medical record if the health care proxy OR
LIVING WILL has not been included in such record.
S 6. Section 2985 of the public health law, as added by chapter 752 of
the laws of 1990, is amended to read as follows:
S 2985. Revocation. 1. Means of revoking proxy OR LIVING WILL. (a) A
competent adult may revoke a health care proxy OR LIVING WILL by notify-
ing the agent or a health care provider orally or in writing or by any
other act evidencing a specific intent to revoke the proxy.
(b) For the purposes of this section, every adult shall be presumed
competent unless determined otherwise pursuant to court order.
(c) A health care proxy OR LIVING WILL shall also be revoked upon
execution by the principal of a subsequent health care proxy OR LIVING
WILL.
(d) The creation by the principal of A LIVING WILL, written wishes or
instructions about health care, or limitations upon the agent's authori-
ty, 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.
(e) 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.
2. Duty to record revocation. (a) A physician who is informed of or
provided with a revocation of a health care proxy OR LIVING WILL shall
immediately (i) record the revocation in the principal's medical record
and (ii) notify the agent and the medical staff responsible for the
principal's care of the revocation.
(b) Any member of the staff of a health care provider informed of or
provided with a revocation of a health care proxy OR LIVING WILL pursu-
ant to this section shall immediately notify a physician of such revoca-
tion.
S 7. Section 2988 of the public health law, as added by chapter 752 of
the laws of 1990, is amended to read as follows:
S 2988. Requiring or prohibiting execution of proxy OR LIVING WILL.
No person may require or prohibit the execution of a health care proxy
OR LIVING WILL by an individual as a condition for providing health care
services or insurance to such individual.
S 8. Subdivision 2 of section 2989 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
2. Nothing in this article creates, expands, diminishes, impairs or
supersedes any authority that a principal may have under law to make or
express decisions, wishes or instructions regarding health care, includ-
ing decisions about life sustaining treatment, whether or not expressed
in a health care proxy OR LIVING WILL.
S. 1926 6
S 9. Section 2990 of the public health law, as added by chapter 752 of
the laws of 1990, is amended to read as follows:
S 2990. Proxies AND LIVING WILLS executed in other states. A health
care proxy, LIVING WILL or similar instrument executed in another state
or jurisdiction in compliance with the law of that state or jurisdiction
shall be considered validly executed for purposes of this article.
S 10. The section heading and subdivision 1 of section 2991 of the
public health law, as added by chapter 752 of the laws of 1990, are
amended to read as follows:
Creation and use of proxies OR WILLS in residential health care and
mental hygiene facilities. 1. Residential health care facilities and
mental hygiene facilities shall establish procedures:
(a) to provide information to adult residents about their right to
create a health care proxy AND/OR LIVING WILL under this article;
(b) to educate adult residents about the authority delegated under a
health care proxy, what a proxy AND LIVING WILL may include or omit, and
how a proxy AND LIVING WILL is created and revoked;
(c) to help ensure that each resident who creates a proxy AND/OR
LIVING WILL while residing at the facility does so voluntarily.
S 11. Subdivisions 1 and 3 of section 2992 of the public health law,
as added by chapter 752 of the laws of 1990, are amended to read as
follows:
1. determine the validity of the health care proxy OR LIVING WILL;
3. override the agent's decision about health care treatment on the
grounds that: (a) the decision was made in bad faith [or]; (b) the deci-
sion is not in accordance with the standards set forth in subdivision
one or two of section two thousand nine hundred eighty-two of this arti-
cle; OR (C) THE DECISION CONFLICTS WITH A DULY EXECUTED LIVING WILL.
S 12. This act shall take effect on the ninetieth day after it shall
have become a law.
