* § 2965. Surrogate decision-making. 1. (a) The consent of a surrogate
or health care agent acting on behalf of an adult patient who lacks
capacity or on behalf of an adult patient for whom consent by a
surrogate or health care agent is authorized by subdivision three of
section twenty-nine hundred sixty-four of this article must be obtained
prior to issuing an order not to resuscitate the patient, except as
provided in paragraph (b) of this subdivision or section twenty-nine
hundred sixty-six of this article.

(b) The consent of a surrogate or health care agent shall not be
required where the adult had, prior to losing capacity, consented to an
order not to resuscitate pursuant to subdivision two of section
twenty-nine hundred sixty-four of this article.

(c) A decision regarding cardiopulmonary resuscitation by a health
care agent on a principal's behalf is governed by article twenty-nine-C
of this chapter and shall have priority over decisions by any other
person, except the patient or as otherwise provided in the health care
proxy.

2. (a) One person from the following list, to be chosen in order of
priority listed, when persons in the prior subparagraphs are not
reasonably available, willing to make a decision regarding issuance of
an order not to resuscitate, and competent to make a decision regarding
issuance of an order not to resuscitate, shall have the authority to act
as surrogate on behalf of the patient. However, such person may
designate any other person on the list to be surrogate, provided no one
in a higher class than the person designated objects:

(i) a guardian authorized to decide about health care pursuant to
article eighty-one of the mental hygiene law or a guardian of a person
appointed under article seventeen-A of the surrogate's court procedure
act, provided that this paragraph shall not be construed to require the
appointment of a guardian for the purpose of making the resuscitation
decision;

(ii) the spouse, if not legally separated from the patient, or the
domestic partner;

(iii) a son or daughter eighteen years of age or older;

(iv) a parent;

(v) a brother or sister eighteen years of age or older; and

(vi) a close friend.

(b) After the surrogate has been identified, the name of such person
shall be included in the patient's medical chart.

3. (a) The surrogate shall make a decision regarding cardiopulmonary
resuscitation on the basis of the adult patient's wishes including a
consideration of the patient's religious and moral beliefs, or, if the
patient's wishes are unknown and cannot be ascertained, on the basis of
the patient's best interests.

(b) Notwithstanding any law to the contrary, the surrogate shall have
the same right as the patient to receive medical information and medical
records.

(c) A surrogate may consent to an order not to resuscitate on behalf
of an adult patient only if there has been a determination by an
attending practitioner with the concurrence of another physician, nurse
practitioner or physician assistant selected by a person authorized by
the hospital to make such selection, given after personal examination of
the patient that, to a reasonable degree of medical certainty:

(i) the patient has a terminal condition; or

(ii) the patient is permanently unconscious; or

(iii) resuscitation would be medically futile; or

(iv) resuscitation would impose an extraordinary burden on the patient
in light of the patient's medical condition and the expected outcome of
resuscitation for the patient.

Each determination shall be included in the patient's medical chart.

4. (a) A surrogate shall express a decision consenting to an order not
to resuscitate either (i) in writing, dated, and signed in the presence
of one witness eighteen years of age or older who shall sign the
decision, or (ii) orally, to two persons eighteen years of age or older,
one of whom is a physician, nurse practitioner or physician assistant
affiliated with the hospital in which the patient is being treated. Any
such decision shall be recorded in the patient's medical chart.

(b) The attending practitioner who is provided with the decision of a
surrogate shall include the decision in the patient's medical chart and,
if the surrogate has consented to the issuance of an order not to
resuscitate, shall either:

(i) promptly issue an order not to resuscitate the patient and inform
the hospital staff responsible for the patient's care of the order; or

(ii) promptly make the attending practitioner's objection to the
issuance of such an order known to the surrogate and either make all
reasonable efforts to arrange for the transfer of the patient to another
physician, nurse practitioner or physician assistant, if necessary, or
promptly refer the matter to the dispute mediation system.

(c) If the attending practitioner has actual notice of opposition to a
surrogate's consent to an order not to resuscitate by any person on the
surrogate list, the physician, nurse practitioner or physician assistant
shall submit the matter to the dispute mediation system and such order
shall not be issued or shall be revoked in accordance with the
provisions of subdivision three of section twenty-nine hundred
seventy-two of this article.

* NB Repealed March 21, 2024