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This entry was published on 2020-06-19
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SECTION 2981
Appointment of health care agent; health care proxy
Public Health (PBH) CHAPTER 45, ARTICLE 29-C
§ 2981. Appointment of health care agent; health care proxy. 1.
Authority to appoint agent; presumption of competence. (a) A competent
adult may appoint a health care agent in accordance with the terms of
this article.

(b) For the purposes of this section, every adult shall be presumed
competent to appoint a health care agent unless such person has been
adjudged incompetent or otherwise adjudged not competent to appoint a
health care agent, or unless a committee or guardian of the person has
been appointed for the adult pursuant to article seventy-eight of the
mental hygiene law or article seventeen-A of the surrogate's court
procedure act.

2. Health care proxy; execution; witnesses. (a) 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 execution of the health
care proxy.

(b) 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 or psychiatric nurse practitioner.

(c) For persons who reside in a mental hygiene facility operated or
licensed by the office for people with developmental disabilities, at
least one witness shall be an individual who is not affiliated with the
facility and at least one witness shall be a physician, nurse
practitioner, physician assistant or clinical psychologist who either is
employed by a developmental disabilities services office 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 for people with developmental disabilities, or
has been approved by the commissioner of developmental disabilities in
accordance with regulations approved by the commissioner. Such
regulations shall require that a physician, nurse practitioner,
physician assistant, or clinical psychologist possess specialized
training or three years experience in treating developmental
disabilities.

3. Restrictions on who may be and limitations on a health care agent.
(a) 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.

(b) The restriction in paragraph (a) 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, physician assistant, or nurse practitioner, subject
to the limitation set forth in paragraph (c) of this subdivision, except
that no physician or nurse practitioner 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.

(c) If a physician, physician assistant, or nurse practitioner is
appointed agent, the physician, physician assistant, or nurse
practitioner shall not act as the patient's attending practitioner after
the authority under the health care proxy commences, unless the
physician, physician assistant, or nurse practitioner declines the
appointment as agent at or before such time.

(d) 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.

4. Commencement of agent's authority. The agent's authority shall
commence upon a determination, made pursuant to subdivision one of
section two thousand nine hundred eighty-three of this article, that the
principal lacks capacity to make health care decisions.

5. Contents and form of health care proxy. (a) 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.

(b) The health care proxy may include the principal's wishes or
instructions about health care decisions, and limitations upon the
agent's authority.

(c) 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.

(d) A health care proxy may, but need not, be in the following form:

Health Care Proxy

I (name of principal) hereby appoint (name,
home address and telephone number of agent) as my health care agent to
make any and all health care decisions for me, except to the extent I
state otherwise.

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:

Address:

Date:

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.

Witness:

Address:

Witness:

Address:

(e) 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.

(f) A health care proxy may include the principal's wishes or
instructions regarding organ and tissue donation and may limit the
health care agent's authority to consent to organ or tissue donation or
designate another person to do so, under article forty-three of this
chapter. Failure to state wishes or instructions shall not be construed
to imply a wish not to donate.

6. 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 practitioner has determined in a writing signed by
the physician, physician assistant, or nurse practitioner (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 practitioner shall record the change in agent and
the reasons therefor in the principal's medical record.