N.Y. Public Health Law § 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 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 or clinical psychologist possess specialized training or three years experience in treating developmental disabilities. * NB Effective until June 17, 2020 * 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. * NB Effective June 17, 2020 * 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:
1. (i) an operator, administrator or employee of a hospital who is related to the principal by blood, marriage or adoption; or
2. (ii) a physician 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 or nurse practitioner is appointed agent, the physician or nurse practitioner shall not act as the patient's attending physician or attending nurse practitioner after the authority under the health care proxy commences, unless the physician 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. * NB Effective until June 17, 2020 * 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:
1. (i) an operator, administrator or employee of a hospital who is related to the principal by blood, marriage or adoption; or
2. (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. * NB Effective June 17, 2020
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:
1. (i) identify the principal and agent; and
2. (ii) indicate that the principal intends the agent to have authority to make health care decisions on the principal's behalf.
3. (b) The health care proxy may include the principal's wishes or instructions about health care decisions, and limitations upon the agent's authority.
4. (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.
5. (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:
6. (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.
7. (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:
  1. (i) the attending physician or attending nurse practitioner has determined in a writing signed by the physician 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;
  2. (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
  3. (iii) under conditions set forth in the proxy.
  4. (b) If, after an alternate agent's authority commences, the person appointed as agent becomes available, willing and competent to serve as agent:
    1. (i) the authority of the alternate agent shall cease and the authority of the agent shall commence; and
    2. (ii) the attending physician or attending nurse practitioner shall record the change in agent and the reasons therefor in the principal's medical record. * NB Effective until June 17, 2020 * 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:
    3. (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;
    4. (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
    5. (iii) under conditions set forth in the proxy.
    6. (b) If, after an alternate agent's authority commences, the person appointed as agent becomes available, willing and competent to serve as agent:
      1. (i) the authority of the alternate agent shall cease and the authority of the agent shall commence; and
      2. (ii) the attending practitioner shall record the change in agent and the reasons therefor in the principal's medical record. * NB Effective June 17, 2020