Allows vesting of a health care proxy authority without incapacity of ward

1 Co-sponsor

• William J. Larkin Jr.

BILL NUMBER:S3737

Title of bill

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

Purpose or general idea of bill

This bill allows an adult to make his or her health care proxy become effective even while the adult has capacity, as opposed to only upon determination of incapacity.

Summary of specific provisions

Section 1 is the legislative intent.

Section 2 allows an adult to specify in his or her health care proxy that the agent's authority shall commence without a determination that the principal lacks capacity.

Sections 3 and 4 require that, when an agent's authority has commenced without a determination of incapacity and a health care decision requires informed consent, the health care provider must either (i) get the patient's informed consent or (ii) get the agent's informed consent and (as practicable) consult the patient and get the patient's non-objection to the agent's decision.

Justification

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 assistance in making some or all such decisions for him or her, even though the adult does not lack decision-making capacity.

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 bill recognizes that health care providers must always involve an adult patient who has capacity in significant health care decisions, even if the patient had empowered an agent to act for him or her.

Prior legislative history

2010: A.11629 - Referred to Health Committee

Fiscal implications

None noted.

Effective date

Immediately.