S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4471

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2013
                               ___________

Introduced  by  M.  of  A.  GOTTFRIED, JACOBS, DINOWITZ, PAULIN, LAVINE,
  JAFFEE, MILLMAN, GUNTHER, WEPRIN, ORTIZ -- Multi-Sponsored by -- M. of
  A. ABINANTI, BRENNAN, GABRYSZAK, GLICK,  RA,  SWEENEY,  WEISENBERG  --
  read once and referred to the Committee on Health

AN  ACT to amend the public health law, in relation to allowing an adult
  to opt to make a health care agent's  authority  effective  without  a
  determination of incapacity

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The legislature finds that the health care proxy has proven
invaluable as a means for an adult to appoint a  health  care  agent  to
protect his or her wishes and interests in the event the adult loses the
capacity  to  make  those decisions personally. Yet in some instances an
adult may wish the assistance of a health care agent even  while  he  or
she  still  has  decisional capacity. For example, an adult who finds it
very difficult to make health care decisions  personally  because  of  a
chronic illness or disability may wish a trusted family member's assist-
ance  in  making  some or all such decisions for him or her, even though
the adult does not lack decision-making capacity.
  The legislature finds that allowing adults to opt to make their health
care proxy become effective immediately or upon some other event defined
by the adult, as opposed to only upon  a  determination  of  incapacity,
would  enable  adults  to  secure that needed assistance. This "enhanced
health care proxy" would also help patients overcome the  reluctance  of
some  health  care  professionals  to  share  health  information with a
patient's family member or friend, or involve such person  in  decision-
making,  unless  such person has effective authority under a health care
proxy.
  At the same time, the legislature recognizes that health care  provid-
ers must always involve an adult patient who has capacity in significant

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01532-01-3

              

A. 4471                             2

health care decisions, even if the patient had empowered an agent to act
for him or her.
  S  2. Subdivision 4 of section 2981 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
  4. Commencement of agent's  authority.  The  agent's  authority  shall
commence  (I)  upon a determination, made pursuant to subdivision one of
section [two thousand nine] TWENTY-NINE  hundred  eighty-three  of  this
article,   that  the  principal  lacks  capacity  to  make  health  care
decisions; OR (II) WITHOUT A  DETERMINATION  THAT  THE  PRINCIPAL  LACKS
CAPACITY, IF AND AS SPECIFIED IN THE HEALTH CARE PROXY.
  S  3. Subdivision 1 of section 2982 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
  1. Scope of authority. Subject  to  any  express  limitations  in  the
health care proxy, an agent shall have the authority to make any and all
health care decisions on the principal's behalf that the principal could
make. Such authority shall be subject to the provisions of section twen-
ty-nine  hundred eighty-nine of this article.  WHEN AN AGENT'S AUTHORITY
HAS COMMENCED WITHOUT A DETERMINATION THAT THE PRINCIPAL LACKS CAPACITY,
THE AGENT'S HEALTH CARE DECISION IS SUBJECT TO THE HEALTH  CARE  PROVID-
ER'S  OBLIGATION  TO  CONSULT  WITH THE PATIENT AND SECURE THE PATIENT'S
CONSENT OR NON-OBJECTION, AS PROVIDED BY PARAGRAPH  (B)  OF  SUBDIVISION
TWO OF SECTION TWENTY-NINE HUNDRED EIGHTY-FOUR OF THIS ARTICLE.
  S  4. Subdivision 2 of section 2984 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
  2. (A) A health care provider shall comply with health care  decisions
made  by  an  agent  in good faith under a health care proxy to the same
extent as if such decisions had been made by the principal,  subject  to
any  limitations in the health care proxy and pursuant to the provisions
of subdivision five of section [two thousand nine]  TWENTY-NINE  hundred
eighty-three of this article.
  (B)  NOTWITHSTANDING THE FOREGOING, WHEN A PATIENT'S HEALTH CARE PROXY
PROVIDES FOR AN AGENT'S AUTHORITY TO COMMENCE  WITHOUT  A  DETERMINATION
THAT  THE  PRINCIPAL LACKS CAPACITY, BEFORE IMPLEMENTING A DECISION THAT
REQUIRES INFORMED CONSENT (INCLUDING A DECISION TO WITHHOLD OR  WITHDRAW
LIFE-SUSTAINING  TREATMENT)  WITH RESPECT TO A PATIENT WHO HAS CAPACITY,
THE HEALTH CARE PROVIDER MUST EITHER:
  (I) SECURE AND DOCUMENT THE INFORMED CONSENT OF  THE  PATIENT  TO  THE
TREATMENT DECISION; OR
  (II) SECURE AND DOCUMENT THE INFORMED CONSENT OF THE AGENT AND, TO THE
EXTENT  REASONABLY  PRACTICABLE,  CONSULT  WITH  THE  PATIENT  ABOUT THE
AGENT'S DECISION AND  SECURE  AND  DOCUMENT  THE  NON-OBJECTION  OF  THE
PATIENT TO THE AGENT'S DECISION.
  S 5. This act shall take effect immediately.