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Health
Instrument: Health care proxy (HCP)
What is it for?
The HCP is a document that allows a “competent adult” (the “principal”) to delegate the authority to make health care decisions to a “health care agent” should the principal be determined by an attending practitioner to lack capacity to make health care decisions. The principal may also designate an “alternate agent” to fulfill that role if the health care agent is unavailable.
What does it do?
The HCP binds a health care provider to accept the agent’s decision as if it were made by the principal. N.Y. Pub. Health L. § 2984. The agent must consult with a licensed physician, registered nurse, licensed psychologist, licensed master social worker, or a licensed clinical social worker, in making decisions on the principal’s behalf, and the agent is bound to make them either in accordance with the principal’s wishes, or if the principal’s wishes are not reasonably known, in accordance with the principal’s best interests. Agents, however, may not make decisions with regard to artificial nutrition and hydration for the principal if the principal’s wishes are not known or readily ascertained.
How does one make it?
The HCP instrument must both identify the principal and agent also indicate that the principal intends the agent to have authority to make health care decisions on the principal’s behalf. The HCP may also include the principal’s wishes or instructions about health care decisions, and limitations upon the agent’s authority.
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. For the purposes of executing the HCP, a “competent adult” includes every adult who has not been adjudged incompetent or otherwise adjudged not competent to appoint a health care agent. N.Y. Pub. Health L. § 2981.
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. N.Y. Pub. Health L. § 2981.
When does it come into effect?
The agent’s authority only comes into effect subsequent to an attending practitioner’s determination that the principal lacks capacity to make health care decisions. For the purposes of incapacity determinations, “capacity to make health care decisions” is defined as “the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.” Such a determination must be made in writing and the determination must state practitioner’s opinion regarding the cause and nature of the principal’s incapacity as well as its extent and probable duration. N.Y. Pub. Health L. § 2983. If the principal has a developmental disability, then the practitioner must either be or consult with a qualified clinician as described at N.Y. Pub. Health L. § 2983(1)(c).
However, if the principal objects to the incapacity determination, then the principal’s objection overrides that determination. Also, the agent’s authority ceases immediately upon the principal’s recovery of capacity, although the law does not specify how this determination is made.
How long does it last?
Also, the HCP 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.
How does one end it?
A competent adult may revoke a HCP by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy. A HCP shall also be revoked upon execution by the principal of a subsequent HCP. Further, a physician, physician assistant, or nurse practitioner who is informed of or provided with a revocation of a HCP shall immediately record the revocation in the principal’s medical record and notify the agent and the medical staff responsible for the principal’s care of the revocation. N.Y. Pub. Health L. § 2985.
What does an example look like?
The New York State Department of Health has produced a HCP form that complies with New York’s statute here. See also requirements for HCP at N.Y. Pub. Health L. § 2981.
What else should one know?
No person may require or prohibit the execution of a HCP by an individual as a condition for providing health care services or insurance to such individual. N.Y. Pub. Health L. § 2988. All residential health care and mental health care facilities must have procedures for educating residents about HCPs and also for ensuring that HCPs executed by residents are voluntary. N.Y. Pub. Health L. § 2991.
A health care provider who is provided with a HCP shall arrange for the proxy or a copy thereof to be inserted in the principal’s medical record if the HCP has not been included in such record. N.Y. Pub. Health L. § 2984.
No provider relying on an agent’s decision or person acting as agent pursuant to a HCP shall be subjected to criminal or civil liability for making a health care decision in good faith. N.Y. Pub. Health L. § 2986.
Last updated April 2021
General
Instrument I: Supported Decision-Making Agreement (SDMA)
What is it for?
A “supported decision-making agreement” (SDMA) is an agreement an adult enters into with one or more supporters that describes how the adult (the “decision-maker”) uses supported decision-making to make their own decisions about their life, including, but not limited to, decisions related to where and with whom the decision-maker wants to live; decisions about finances; the services, supports, and health care the decision-maker wants to receive; and where the decision-maker wants to work. N.Y. Mental Hyg. Law § 82.02(i). An SDMA can either be an informal arrangement between the decision-maker and their supporter or supporters, or one that has been developed through a facilitation process. N.Y. Mental Hyg. Law § 82.02(j).
What does it do?
The SDMA describes the decision-making assistance that each supporter may provide the decision-maker. The kinds of assistance supporters may provide, unless otherwise stated in the SDMA, include:
(a) gathering information,
(b) understanding and interpreting information,
(c) weighing options and alternatives to a decision,
(d) considering the consequences of making a decision or not making it,
(e) participating in conversations with third parties if the decision-maker is present and requests their participation,
(f) communicating the decision-maker’s decision to third parties if the decision-maker is present and requests their participation, and
(g) providing the decision-maker support in implementing the decision-maker’s decision. N.Y. Mental Hyg. Law § 82.04(a).
However, an SDMA does not obligate decision-maker to obtain assistance from a supporter named in the SDMA before making a decision. N.Y. Mental Hyg. Law § 82.04(b).
In providing decision-making assistance, a supporter must:
1. respect the decision-maker’s right to make a decision, even when the supporter disagrees with the decision or believes it is not in the decision-maker’s best interests;
2. act honestly, diligently, and in good faith;
3. act within the scope of the SDMA; and
4. avoid conflicts of interest, among other duties. N.Y. Mental Hyg. Law § 82.05(a).
An SDMA on its own does not give supporters the power to make decisions for the decision-maker: the decision-maker retains that right. Also, a supporter may not communicate a decision-maker’s decision to a third party without the participation and presence of the decision-maker. N.Y. Mental Hyg. Law §§ 82.05(b)(1) & (6).
Finally, an SDMA has legal force and is binding on third parties only if the decision-maker creates the SDMA with the assistance of a “facilitator” who is authorized by the state to assist with the execution of SDMAs. N.Y. Mental Hyg. Law § 82.04(j). This means that third parties must treat any decision or request made by a decision-maker with the assistance of a supporter in accordance with an SDMA the same as a decision or request by any other person.
N.Y. Mental Hyg. Law § 82.11(b).
How does one make it?
The SDMA must be dated, in writing, and signed voluntarily by the decision-maker and each named supporter. Each supporter must also attest in the SDMA that they agree to honor the right of the decision-maker to make their own decisions in the ways and areas specified in the agreement, respect the decision-maker’s decisions, and, further, that they will not make decisions for the decision-maker. The SDMA must list the kinds of support that each supporter may give for each area in which they are designated as a supporter, and it must state that the decision-maker may change, amend, or revoke the supported decision-making agreement at any time for any reason. Finally, the decision-maker and supporters’ signatures must either be witnessed by two adults who are not supporters named on the SDMA or notarized. N.Y. Mental Hyg. Law § 82.10(b).
When does it come into effect?
Unless specified otherwise, the SDMA comes into effect immediately upon execution.
How long does it last?
An SDMA remains in effect unless and until revoked by the decision-maker. N.Y. Mental Hyg. Law § 82.06.
How does one end it?
The decision-maker may revoke all or part of an SDMA either by notifying the supporters orally or in writing, or by any other act evincing a specific intent to revoke the SDMA. N.Y. Mental Hyg. Law § 82.07(a). A single supporter’s resignation or disqualification does not end an SDMA and the SDMA will remain in effect with regard to any other supporters named in the SDMA. N.Y. Mental Hyg. Law § 82.08.
What does an example look like?
New York does not have a statutory form. Access to an SDMA template is available through the Supported Decision-Making New York (SDMNY) project.
What else should one know?
Executing an SDMA may not be a condition of participation in any activity, service, or program. N.Y. Mental Hyg. Law § 82.04(g).
Instrument II: Power of attorney (POA)
What is it for?
“Power of attorney” (POA) means a written document, other than a document referred to in section 5-1501C of this title, by which a principal 18 years or older with capacity designates one or more agents to act on his or her behalf. For the purposes of executing a POA, “capacity” means the “ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney, or the authority of any person to act as agent under a power of attorney.” Also, New York’s POA is presumed durable unless the instrument expressly states that it is terminated by the principal’s incapacity. N.Y. Gen. Oblig. § 5-1501A.
What does it do?
The POA obligates others (“third parties”), such as financial institutions, to treat the decisions and actions of an agent as if they were the principal’s own. Third parties are obligated to rely on valid POAs unless the have reasonable cause not to, which may include the agent’s refusal to provide a certified copy of the POA to the third party, or having a reasonable basis for believing that the principal was incapacitated at the time the POA was executed. It is unreasonable to refuse a POA simply because the POA is not on a form prescribed by the third party. Third parties must reject the POA within 10 business days in writing and state the reasons for rejection. However, third parties may reasonably require an agent to execute an affidavit verifying that the POA is in effect. N.Y. Gen. Oblig. § 5-1504.
How does one make it?
The POA must (a) be typed or printed using letters which are legible or of clear type no less than 12 point in size, or, if in writing, a reasonable equivalent thereof; (b) be signed and dated by the principal and agent; (c) have both signatures notarized; and (d) contain the specific language provided under the “Caution to the Principal” and “Important Information for the Agent” headings of Section 5-1513. N.Y. Gen. Oblig. § 5-1501B.
Certain changes to New York’s POA statute entered into effect on June 13, 2021 that are generally designed to make POAs more accessible. One change allows the signing requirement to be interpreted broadly to include “any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise” or “to use an electronic signature.” These changes are described in more detail here.
When does it come into effect?
The POA enters into effect either on the date the agent’s signature is notarized (in the case of joint agents, the date when all the agents’ signatures have been notarized), or if expressly stated in the POA, upon the occurrence of a future date or event. If the latter, which is often referred to as a “springing” POA, then the POA may require that a specific person declare in writing that the triggering event has occurred.
How long does it last?
The POA lasts until the principal dies or revokes the POA or revokes an agent’s authority without there being a co-agent or successor agent. The POA also ends if the agent dies, becomes incapacitated, or resigns and there is no co-agent or successor agent. The POA may also be revoked by a court or it may terminate if its purpose is accomplished. Last, if the POA is not durable, then the POA ends when the principal becomes incapacitated. N.Y. Gen. Oblig. § 5-1511.
How does one end it?
Unless another specific means is described in the POA itself, the principal must deliver a signed and dated written revocation to the agent in person, by mail or electronically. If the POA has been recorded, then the principal must also record the revocation in the same office of record. Note that the execution of a subsequent POA does not in itself revoke a prior POA. N.Y. Gen. Oblig. § 5-1511.
What does an example look like?
New York has a statutory short form POA, located at N.Y. Gen. Oblig. § 5-1513, while also permitting non-statutory POAs that comply with the law’s requirements. Modifications to the short form, such as specifically listing additional powers of the agent, that are not inconsistent with other provisions in the short form do not invalidate the POA. N.Y. Gen. Oblig. § 5-1503.
What else should one know?
New York’s POA is not based on the Uniform Power of Attorney Act.
Last updated February 2024