Section 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.
    (c)  For  persons  who reside in a mental hygiene facility operated or
  licensed  by  the  office  of  mental  retardation   and   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  or  clinical  psychologist who either is employed by a school
  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 of  mental  retardation  and
  developmental disabilities, or who has been approved by the commissioner
  of  mental retardation and developmental disabilities in accordance with
  regulations approved by the commissioner. Such regulations shall require
  that a physician 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, subject to the limitation set forth in paragraph (c)
  of  this  subdivision, except that no physician 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 is appointed agent, the physician shall not act as
  the patient's attending physician after the authority under  the  health

  care  proxy  commences, unless the physician 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.  Failure  to  state
  wishes  or  instructions  shall  not be construed to imply a wish not to
  donate.
    * NB Effective until October 25, 2009
    * (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.
    * NB Effective October 25, 2009
    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 physician has determined in a writing signed by  the
  physician  (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 physician shall record the change in agent and the
  reasons therefor in the principal's medical record.