S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1422
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 12, 2015
                                      ___________
       Introduced  by  M.  of  A.  GOTTFRIED, DINOWITZ, PAULIN, LAVINE, JAFFEE,
         GUNTHER, WEPRIN, ORTIZ -- Multi-Sponsored by --  M.  of  A.  ABINANTI,
         BRENNAN,  GLICK,  PERRY, RA -- 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:
    1    Section 1. The legislature finds that the health care proxy has proven
    2  invaluable  as  a  means  for an adult to appoint a health care agent to
    3  protect his or her wishes and interests in the event the adult loses the
    4  capacity to make those decisions personally. Yet in  some  instances  an
    5  adult  may  wish  the assistance of a health care agent even while he or
    6  she still has decisional capacity. For example, an adult  who  finds  it
    7  very  difficult  to  make  health care decisions personally because of a
    8  chronic illness or disability may wish a trusted family member's assist-
    9  ance in making some or all such decisions for him or  her,  even  though
   10  the adult does not lack decision-making capacity.
   11    The legislature finds that allowing adults to opt to make their health
   12  care proxy become effective immediately or upon some other event defined
   13  by  the  adult,  as  opposed to only upon a determination of incapacity,
   14  would enable adults to secure that  needed  assistance.  This  "enhanced
   15  health  care  proxy" would also help patients overcome the reluctance of
   16  some health care  professionals  to  share  health  information  with  a
   17  patient's  family  member or friend, or involve such person in decision-
   18  making, unless such person has effective authority under a  health  care
   19  proxy.
   20    At  the same time, the legislature recognizes that health care provid-
   21  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.
                                                                  LBD02429-01-5
       A. 1422                             2
    1  health care decisions, even if the patient had empowered an agent to act
    2  for him or her.
    3    S  2. Subdivision 4 of section 2981 of the public health law, as added
    4  by chapter 752 of the laws of 1990, is amended to read as follows:
    5    4. Commencement of agent's  authority.  The  agent's  authority  shall
    6  commence  (I)  upon a determination, made pursuant to subdivision one of
    7  section [two thousand nine] TWENTY-NINE  hundred  eighty-three  of  this
    8  article,   that  the  principal  lacks  capacity  to  make  health  care
    9  decisions; OR (II) WITHOUT A  DETERMINATION  THAT  THE  PRINCIPAL  LACKS
   10  CAPACITY, IF AND AS SPECIFIED IN THE HEALTH CARE PROXY.
   11    S  3. Subdivision 1 of section 2982 of the public health law, as added
   12  by chapter 752 of the laws of 1990, is amended to read as follows:
   13    1. Scope of authority. Subject  to  any  express  limitations  in  the
   14  health care proxy, an agent shall have the authority to make any and all
   15  health care decisions on the principal's behalf that the principal could
   16  make. Such authority shall be subject to the provisions of section twen-
   17  ty-nine  hundred eighty-nine of this article.  WHEN AN AGENT'S AUTHORITY
   18  HAS COMMENCED WITHOUT A DETERMINATION THAT THE PRINCIPAL LACKS CAPACITY,
   19  THE AGENT'S HEALTH CARE DECISION IS SUBJECT TO THE HEALTH  CARE  PROVID-
   20  ER'S  OBLIGATION  TO  CONSULT  WITH THE PATIENT AND SECURE THE PATIENT'S
   21  CONSENT OR NON-OBJECTION, AS PROVIDED BY PARAGRAPH  (B)  OF  SUBDIVISION
   22  TWO OF SECTION TWENTY-NINE HUNDRED EIGHTY-FOUR OF THIS ARTICLE.
   23    S  4. Subdivision 2 of section 2984 of the public health law, as added
   24  by chapter 752 of the laws of 1990, is amended to read as follows:
   25    2. (A) A health care provider shall comply with health care  decisions
   26  made  by  an  agent  in good faith under a health care proxy to the same
   27  extent as if such decisions had been made by the principal,  subject  to
   28  any  limitations in the health care proxy and pursuant to the provisions
   29  of subdivision five of section [two thousand nine]  TWENTY-NINE  hundred
   30  eighty-three of this article.
   31    (B)  NOTWITHSTANDING THE FOREGOING, WHEN A PATIENT'S HEALTH CARE PROXY
   32  PROVIDES FOR AN AGENT'S AUTHORITY TO COMMENCE  WITHOUT  A  DETERMINATION
   33  THAT  THE  PRINCIPAL LACKS CAPACITY, BEFORE IMPLEMENTING A DECISION THAT
   34  REQUIRES INFORMED CONSENT (INCLUDING A DECISION TO WITHHOLD OR  WITHDRAW
   35  LIFE-SUSTAINING  TREATMENT)  WITH RESPECT TO A PATIENT WHO HAS CAPACITY,
   36  THE HEALTH CARE PROVIDER MUST EITHER:
   37    (I) SECURE AND DOCUMENT THE INFORMED CONSENT OF  THE  PATIENT  TO  THE
   38  TREATMENT DECISION; OR
   39    (II) SECURE AND DOCUMENT THE INFORMED CONSENT OF THE AGENT AND, TO THE
   40  EXTENT  REASONABLY  PRACTICABLE,  CONSULT  WITH  THE  PATIENT  ABOUT THE
   41  AGENT'S DECISION AND  SECURE  AND  DOCUMENT  THE  NON-OBJECTION  OF  THE
   42  PATIENT TO THE AGENT'S DECISION.
   43    S 5. This act shall take effect immediately.