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This entry was published on 2020-06-19
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Special proceeding authorized; court orders; health care guardian for minor patient
Public Health (PBH) CHAPTER 45, ARTICLE 29-CC
§ 2994-r. Special proceeding authorized; court orders; health care
guardian for minor patient. 1. Special proceeding. Any person connected
with the case and any member of the hospital ethics review committee may
commence a special proceeding pursuant to article four of the civil
practice law and rules in a court of competent jurisdiction with respect
to any matter arising under this article.

2. Court orders designating surrogate. A court of competent
jurisdiction may designate any individual from the surrogate list to act
as surrogate, regardless of that individual's priority on the list, if
the court determines that such appointment would best accord with the
patient's wishes or, if the patient's wishes are not reasonably known,
with the patient's best interests. The court may remove a surrogate on
the ground that the surrogate: (a) is not reasonably available, willing
and competent to fulfill his or her obligations under this article; (b)
is acting in bad faith; or (c) is the subject of an order of protection
protecting the patient or has been arrested or charged for a criminal
act that allegedly caused the patient's lack of capacity or
substantially injured or impaired the health status of the patient,
provided that the application of this provision in a particular case may
be waived or modified in the interest of justice. Unless otherwise
determined by a court, no surrogate decision made prior to an order
designating a surrogate shall be deemed to have been invalid because of
the issuance of a designating order.

3. Court orders to withhold or withdraw life-sustaining treatment. A
court of competent jurisdiction may authorize the withholding or
withdrawal of life-sustaining treatment from a person if the court
determines that the person lacks decision-making capacity, and
withdrawing or withholding the treatment would accord with the standards
set forth in subdivision five of section twenty-nine hundred
ninety-four-d of this article.

4. Health care guardian for a minor patient. (a) No appointment shall
be made pursuant to this subdivision if a parent or legal guardian of
the person is available, willing, and competent to decide about
treatment for the minor.

(b) The following persons may commence a special proceeding in a court
of competent jurisdiction to seek appointment as the health care
guardian of a minor patient solely for the purpose of deciding about
life-sustaining treatment pursuant to this article:

(i) the hospital administrator;

(ii) an attending practitioner;

(iii) the local commissioner of social services or the local
commissioner of health, authorized to make medical treatment decisions
for the minor pursuant to section three hundred eighty-three-b of the
social services law; or

(iv) an individual, eighteen years of age or older, who has assumed
care of the minor for a substantial and continuous period of time.

(c) Notice of the proceeding shall be given to the persons identified
in section seventeen hundred five of the surrogate's court procedure

(d) Notwithstanding any other provision of law, seeking appointment or
being appointed as a health care guardian shall not otherwise affect the
legal status or rights of the individual seeking or obtaining such