S T A T E O F N E W Y O R K
________________________________________________________________________
1422
2015-2016 Regular Sessions
I N A S S E M B L Y
January 12, 2015
___________
Introduced by M. of A. GOTTFRIED, DINOWITZ, PAULIN, LAVINE, JAFFEE,
GUNTHER, WEPRIN, ORTIZ -- Multi-Sponsored by -- M. of A. ABINANTI,
BRENNAN, GLICK, PERRY, RA -- read once and referred to the Committee
on Health
AN ACT to amend the public health law, in relation to allowing an adult
to opt to make a health care agent's authority effective without a
determination of incapacity
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The legislature finds that the health care proxy has proven
invaluable as a means for an adult to appoint a health care agent to
protect his or her wishes and interests in the event the adult loses the
capacity to make those decisions personally. Yet in some instances an
adult may wish the assistance of a health care agent even while he or
she still has decisional capacity. For example, an adult who finds it
very difficult to make health care decisions personally because of a
chronic illness or disability may wish a trusted family member's assist-
ance in making some or all such decisions for him or her, even though
the adult does not lack decision-making capacity.
The legislature finds that allowing adults to opt to make their health
care proxy become effective immediately or upon some other event defined
by the adult, as opposed to only upon a determination of incapacity,
would enable adults to secure that needed assistance. This "enhanced
health care proxy" would also help patients overcome the reluctance of
some health care professionals to share health information with a
patient's family member or friend, or involve such person in decision-
making, unless such person has effective authority under a health care
proxy.
At the same time, the legislature recognizes that health care provid-
ers must always involve an adult patient who has capacity in significant
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02429-01-5
A. 1422 2
health care decisions, even if the patient had empowered an agent to act
for him or her.
S 2. Subdivision 4 of section 2981 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
4. Commencement of agent's authority. The agent's authority shall
commence (I) upon a determination, made pursuant to subdivision one of
section [two thousand nine] TWENTY-NINE hundred eighty-three of this
article, that the principal lacks capacity to make health care
decisions; OR (II) WITHOUT A DETERMINATION THAT THE PRINCIPAL LACKS
CAPACITY, IF AND AS SPECIFIED IN THE HEALTH CARE PROXY.
S 3. Subdivision 1 of section 2982 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
1. Scope of authority. Subject to any express limitations in the
health care proxy, an agent shall have the authority to make any and all
health care decisions on the principal's behalf that the principal could
make. Such authority shall be subject to the provisions of section twen-
ty-nine hundred eighty-nine of this article. WHEN AN AGENT'S AUTHORITY
HAS COMMENCED WITHOUT A DETERMINATION THAT THE PRINCIPAL LACKS CAPACITY,
THE AGENT'S HEALTH CARE DECISION IS SUBJECT TO THE HEALTH CARE PROVID-
ER'S OBLIGATION TO CONSULT WITH THE PATIENT AND SECURE THE PATIENT'S
CONSENT OR NON-OBJECTION, AS PROVIDED BY PARAGRAPH (B) OF SUBDIVISION
TWO OF SECTION TWENTY-NINE HUNDRED EIGHTY-FOUR OF THIS ARTICLE.
S 4. Subdivision 2 of section 2984 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
2. (A) 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 and pursuant to the provisions
of subdivision five of section [two thousand nine] TWENTY-NINE hundred
eighty-three of this article.
(B) NOTWITHSTANDING THE FOREGOING, WHEN A PATIENT'S HEALTH CARE PROXY
PROVIDES FOR AN AGENT'S AUTHORITY TO COMMENCE WITHOUT A DETERMINATION
THAT THE PRINCIPAL LACKS CAPACITY, BEFORE IMPLEMENTING A DECISION THAT
REQUIRES INFORMED CONSENT (INCLUDING A DECISION TO WITHHOLD OR WITHDRAW
LIFE-SUSTAINING TREATMENT) WITH RESPECT TO A PATIENT WHO HAS CAPACITY,
THE HEALTH CARE PROVIDER MUST EITHER:
(I) SECURE AND DOCUMENT THE INFORMED CONSENT OF THE PATIENT TO THE
TREATMENT DECISION; OR
(II) SECURE AND DOCUMENT THE INFORMED CONSENT OF THE AGENT AND, TO THE
EXTENT REASONABLY PRACTICABLE, CONSULT WITH THE PATIENT ABOUT THE
AGENT'S DECISION AND SECURE AND DOCUMENT THE NON-OBJECTION OF THE
PATIENT TO THE AGENT'S DECISION.
S 5. This act shall take effect immediately.