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Total Life Choices (TLC) provides free legal services to promote and protect the dignity of each individual.  TLC attorneys and volunteers empower individuals in articulating and documenting crucial lifetime, incapacity, and end-of-life choices through education and legal planning.  TLC counsels families on complex court procedures for probate, administration and guardianship.

 

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Total Life Choices (TLC)
New York Legal Assistance Group
7 Hanover Square, 18th Floor
New York, NY 10004

Phone: (212) 613-5000
Fax: (212) 714-7402

Health Care Agent and Health Care Proxy (Public Health Law §2981)

PBH § 2981.  Appointment of health care agent; health care proxy.

1.       Authority to appoint agent; psumption 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  psumed 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.

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Total Life Choices provides free legal education seminars and trainings on legal planning to community groups and medical and social service professionals. To schedule a TLC presentation, contact Tina Janssen-Spinosa, Esq. at (212) 613-5062 or .(JavaScript must be enabled to view this email address)

 

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