What is the difference between a will and a living will?
Full Question:
I am 56yrs currently healthy with adult children. I'm divorced, what do I need a will or living will? What is the difference?
02/21/2009 |
Category: Wills and Estates |
State: New York |
#15322
Answer:
A will, sometimes known as a "last will and testament," is a legal document that provides written instructions for the distribution of a decedent's (dead person's) property. Generally, people should consider making a will if they care how their property will be distributed when they die, they want to name the person who will handle financial and legal matters they may leave behind, or they want to name a guardian for their minor children. Your will should be prepared and properly executed (signed by you and a certain number of competent witnesses) while you still have legal capacity. If you die without having made a will (also known as dying "intestate"), the probate court will appoint a personal representative for your estate. This representative is frequently known as an "administrator." The administrator will receive creditors' claims against your estate, pay debts, and distribute your remaining property according to the laws of your state. There are many differences between dying testate and dying intestate. The main difference, however, is that an intestate estate is distributed to beneficiaries according to the distribution plan established by state law; a testate estate is distributed according to the decedent's instructions provided in the decedent's will.
A living will does not direct how your property is to be disposed of after you die. Rather, it is a document that specifies the general kinds of medical care you would want—or not want—in the event you became unable to communicate with your health care providers. Living wills are sometimes known as "medical directives" or "medical declarations.” A living will takes effect only when the patient is incapacitated and can no longer express his or her wishes. The will states which medical treatments may be used and which may not be used to die naturally and without the patient’s life being artificially prolonged by various medical procedures. The purpose of a living will is to allow you to make decisions about life support and direct others to implement your desires in that regard. our physicians or health care providers are directed by the living will to follow your instructions. Laws governing living wills vary by state. Some states require two witnesses to witness your signature or that the form be signed in the presence of a notary public, or both. If the will provides for the appointment of an agent, the agent appointed should not also be a witness to your signature. The agent appointed to carry out your wishes is sometimes called a health care representative.
Some state laws allow proxies for health care agents. A health care proxy usually must include the name of adult who creates the proxy (the principal); the name of the agent; a statement that the principal intends the agent to make health care decisions for him or her; the principal's signature and date of signature; and the signature of two witnesses, date, and statement by witnesses that the principal appeared to execute the proxy willingly.
The following are New York statutes:
§ 3-1.1 Est. Powers & Trusts. Who may make wills of, and exercise
testamentary powers of appointment over property.
Every person eighteen years of age or over, of sound mind and memory, may
by will dispose of real and personal property and exercise a power to
appoint such property.
§ 3-1.2 Est. Powers & Trusts. What property may be disposed of by will.
Every estate in property may be devised or bequeathed.
§ 3-1.3 Est. Powers & Trusts. Who may receive testamentary dispositions of
property; testamentary dispositions to unincorporated associations.
(a) A testamentary disposition of property may be made to any person
having capacity to acquire and hold such property.
(b) When a will disposes of property to an association which lacks
capacity to receive such property by will because it is unincorporated and
the association may become incorporated under the law of this state or of
the jurisdiction in which it has its principal office, such disposition is
valid despite the lack of capacity of the beneficiary if within three years
after probate of the will such beneficiary becomes incorporated with
capacity to take such disposition, subject to the following:
(1) This section does not limit the power of the court to give effect to
the intention of the testator and to preserve dispositions for the use and
benefit of unincorporated associations.
(2) In the case of a testamentary disposition of property to an
unincorporated association in such manner that the estate may lawfully vest
in such association, as provided in paragraph (b), at a future time, the
estate shall be treated as immediately vested either in the trustee in whom
any estate preceding such disposition is vested or, if there is no such
precedent trust, in the personal representative of the decedent's estate as
trustee, subject to any intermediate estate created by the will. The trust
herein created is subject to the direction and control of the surrogate's
court as if it had been created by express provision in the will. If the
association is incorporated and empowered to receive the disposition, the
trustee shall transfer the property disposed of to the corporation so
formed, but if the association is not incorporated, the trustee shall
transfer the property to such persons as are entitled thereto.
(3) If a testamentary disposition to an association is made in such
manner as to take effect upon the incorporation of such association, as
provided in paragraph (b), and no disposition is made of the rents, profits
or other income accruing prior to such incorporation, the will shall be
construed as directing the trustee described in subparagraph (2) to receive
the rents, profits or other income and to hold them for the benefit of the
corporation when formed or, if such corporation is not formed within the
time prescribed by paragraph (b), for the benefit of the persons entitled
to the property upon the failure of such disposition.
(4) Notwithstanding any other law of this state governing (A) the
purposes for which trusts may be created, (B) the rule against perpetuities
or (C) the accumulation of income, a trust as provided in subparagraph (2)
is valid.
(5) During the continuance of any trust authorized by subparagraph (2),
the unincorporated association to which the disposition is made may enforce
such trust, and any such association has capacity as such, despite the fact
that it is not incorporated, to exercise such right and to take such
proceedings as may be appropriate for the exercise or waiver of such right
or, in the manner permitted by law for renunciation by a testamentary
beneficiary, to renounce the disposition. In the event of any such
renunciation, the trust provided for in subparagraph (2) shall terminate
and the property, including accumulations, shall vest in the persons
otherwise entitled thereto as if no such disposition had been made.
(6) This section does not limit the effectiveness of 8-1.1 with respect
to a disposition to which that section applies.
§ 3-2.1 Est. Powers & Trusts. Execution and attestation of wills; formal
requirements.
(a) Except for nuncupative and holographic wills authorized by 3-2.2,
every will must be in writing, and executed and attested in the following
manner:
(1) It shall be signed at the end thereof by the testator or, in the name
of the testator, by another person in his presence and by his direction,
subject to the following:
(A) The presence of any matter following the testator's signature,
appearing on the will at the time of its execution, shall not invalidate
such matter preceding the signature as appeared on the will at the time of
its execution, except that such matter preceding the signature shall not be
given effect, in the discretion of the surrogate, if it is so incomplete as
not to be readily comprehensible without the aid of matter which follows
the signature, or if to give effect to such matter preceding the signature
would subvert the testator's general plan for the disposition and
administration of his estate.
(B) No effect shall be given to any matter, other than the attestation
clause, which follows the signature of the testator, or to any matter
preceding such signature which was added subsequently to the execution of
the will.
(C) Any person who signs the testator's name to the will, as provided in
subparagraph (1), shall sign his own name and affix his residence address
to the will but shall not be counted as one of the necessary attesting
witnesses to the will. A will lacking the signature of the person signing
the testator's name shall not be given effect; provided, however, the
failure of the person signing the testator's name to affix his address
shall not affect the validity of the will.
(2) The signature of the testator shall be affixed to the will in the
presence of each of the attesting witnesses, or shall be acknowledged by
the testator to each of them to have been affixed by him or by his
direction. The testator may either sign in the presence of, or acknowledge
his signature to each attesting witness separately.
(3) The testator shall, at some time during the ceremony or ceremonies of
execution and attestation, declare to each of the attesting witnesses that
the instrument to which his signature has been affixed is his will.
(4) There shall be at least two attesting witnesses, who shall, within
one thirty day period, both attest the testator's signature, as affixed or
acknowledged in their presence, and at the request of the testator, sign
their names and affix their residence addresses at the end of the will.
There shall be a rebuttable presumption that the thirty day requirement of
the preceding sentence has been fulfilled. The failure of a witness to
affix his address shall not affect the validity of the will.
(b) The procedure for the execution and attestation of wills need not be
followed in the precise order set forth in paragraph (a) so long as all the
requisite formalities are observed during a period of time in which,
satisfactorily to the surrogate, the ceremony or ceremonies of execution
and attestation continue.
§ 3-2.2 Est. Powers & Trusts. Nuncupative and holographic wills.
(a) For the purposes of this section, and as used elsewhere in this
chapter:
(1) A will is nuncupative when it is unwritten, and the making thereof by
the testator and its provisions are clearly established by at least two
witnesses.
(2) A will is holographic when it is written entirely in the handwriting
of the testator, and is not executed and attested in accordance with the
formalities prescribed by 3-2.1.
(b) A nuncupative or holographic will is valid only if made by:
(1) A member of the armed forces of the United States while in actual
military or naval service during a war, declared or undeclared, or other
armed conflict in which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in
actual military or naval service during such war or other armed conflict.
(3) A mariner while at sea.
(c) A will authorized by this section becomes invalid:
(1) If made by a member of the armed forces, upon the expiration of one
year following his discharge from the armed forces.
(2) If made by a person who serves with or accompanies an armed force
engaged in actual military or naval service, upon the expiration of one
year from the time he has ceased serving with or accompanying such armed
force.
(3) If made by a mariner while at sea, upon the expiration of three years
from the time such will was made.
(d) If any person described in paragraph (c) lacks testamentary capacity
at the expiration of the time limited therein for the validity of his will,
such will shall continue to be valid until the expiration of one year from
the time such person regains testamentary capacity.
(e) Nuncupative and holographic wills, as herein authorized, are subject
to the provisions of this chapter to the extent that such provisions can be
applied to such wills consistently with their character, or to the extent
that any such provision expressly provides that it is applicable to such
wills.
§ 3-3.1 Est. Powers & Trusts. What a testamentary disposition includes.
Unless the will provides otherwise, a disposition by the testator of all
his property passes all of the property he was entitled to dispose of at
the time of his death.
§ 4-1.1 Est. Powers & Trusts. Descent and distribution of a decedent's
estate.
The property of a decedent not disposed of by will shall be distributed
as provided in this section. In computing said distribution, debts,
administration expenses and reasonable funeral expenses shall be deducted
but all estate taxes shall be disregarded, except that nothing contained
herein relieves a distributee from contributing to all such taxes the
amounts apportioned against him or her under 2-1.8. Distribution shall then
be as follows:
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the
residue to the spouse, and the balance thereof to the issue by
representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the
surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the
issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as hereinafter
defined), and no spouse, issue, parent or issue of parents, onehalf to the
surviving paternal grandparent or grandparents, or if neither of them
survives the decedent, to their issue, by representation, and the other
one-half to the surviving maternal grandparent or grandparents, or if
neither of them survives the decedent, to their issue, by representation;
provided that if the decedent was not survived by a grandparent or
grandparents on one side or by the issue of such grandparents, the whole to
the surviving grandparent or grandparents on the other side, or if neither
of them survives the decedent, to their issue, by representation, in the
same manner as the one-half. For the purposes of this subparagraph, issue
of grandparents shall not include issue more remote than grandchildren of
such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent,
issue of parents, grandparent, children of grandparents or grandchildren of
grandparents, one-half to the great-grandchildren of the paternal
grandparents, per capita, and the other one-half to the great-grandchildren
of the maternal grandparents, per capita; provided that if the decedent was
not survived by great-grandchildren of grandparents on one side, the whole
to the great-grandchildren of grandparents on the other side, in the same
manner as the one-half.
(b) For all purposes of this section, decedent's relatives of the half
blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death but
born alive thereafter, take as if they were born in his or her lifetime.
(d) The right of an adopted child to take a distributive share and the
right of succession to the estate of an adopted child continue as provided
in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this
section is in lieu of any right of dower to which such spouse may be
entitled.
§ 2981 Pub. Health. Appointment of health care agent; health care
proxy.
1. Authority to appoint agent; presumption 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 presumed
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.
(d) A health care proxy may, but need not, be in the following form:
Health Care Proxy I (name of principal) hereby appoint (name, home
address and telephone number of agent) as my health care agent to make
any and all health care decisions for me, except to the extent I state
otherwise.
This health care proxy shall take effect in the event I become unable to
make my own health care decisions.
NOTE: Although not necessary, and neither encouraged nor discouraged,
you may wish to state instructions or wishes, and limit your agent's
authority. Unless your agent knows your wishes about artificial nutrition
and hydration, your agent will not have authority to decide about
artificial nutrition and hydration. If you choose to state instructions,
wishes, or limits, please do so below: __________________________________
____________________________________
______________________________________________________________________
______________________________________________________________________
I direct my agent to make health care decisions in accordance with my
wishes and instructions as stated above or as otherwise known to him or
her. I also direct my agent to abide by any limitations on his or her
authority as stated above or as otherwise known to him or her.
In the event the person I appoint above is unable, unwilling or
unavailable to act as my health care agent, I hereby appoint (name, home
address and telephone number of alternate agent) as my health care agent. I
understand that, unless I revoke it, this proxy will remain in effect
indefinitely or until the date or occurrence of the condition I have stated
below:
(Please complete the following if you do NOT want this health care proxy
to be in effect indefinitely):
This proxy shall expire: (Specify date or condition) Signature:
Address:
Date:
I declare that the person who signed or asked another to sign this
document is personally known to me and appears to be of sound mind and
acting willingly and free from duress. He or she signed (or asked
another to sign for him or her) this document in my presence and that
person signed in my presence. I am not the person appointed as agent by
this document.
Witness:
Address:
Witness:
Address:
(e) The health care proxy shall not be executed on a form or other
writing that also includes the execution of a power of attorney, provided,
however, that nothing in this paragraph shall invalidate a delegation of
the authority to make health care decisions executed prior to the enactment
of this article.
(f) A health care proxy may include the principal's wishes or
instructions regarding organ and tissue donation. Failure to state wishes
or instructions shall not be construed to imply a wish not to donate.
6. Alternate agent. (a) A competent adult may designate an alternate
agent in the health care proxy to serve in place of the agent when:
(i) the attending physician has determined in a writing signed by the
physician (A) that the person appointed as agent is not reasonably
available, willing and competent to serve as agent, and (B) that such
person is not expected to become reasonably available, willing and
competent to make a timely decision given the patient's medical
circumstances;
(ii) the agent is disqualified from acting on the principal's behalf
pursuant to subdivision three of this section or subdivision two of
section two thousand nine hundred ninety-two of this article, or
(iii) under conditions set forth in the proxy.
(b) If, after an alternate agent's authority commences, the person
appointed as agent becomes available, willing and competent to serve as
agent:
(i) the authority of the alternate agent shall cease and the authority of
the agent shall commence; and
(ii) the attending physician shall record the change in agent and the
reasons therefor in the principal's medical record.
§ 2982 Pub. Health. Rights and duties of agent.
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 twenty-nine
hundred eighty-nine of this article.
2. Decision-making standard. After consultation with a licensed
physician, registered nurse, licensed psychologist, licensed master social
worker, or a licensed clinical social worker, the agent shall make health
care decisions: (a) in accordance with the principal's wishes, including
the principal's religious and moral beliefs; or (b) if the principal's
wishes are not reasonably known and cannot with reasonable diligence be
ascertained, in accordance with the principal's best interests; provided,
however, that if the principal's wishes regarding the administration of
artificial nutrition and hydration are not reasonably known and cannot with
reasonable diligence be ascertained, the agent shall not have the authority
to make decisions regarding these measures.
3. Right to receive information. Notwithstanding any law to the contrary,
the agent shall have the right to receive medical information and medical
and clinical records necessary to make informed decisions regarding the
principal's health care.
4. Priority over other surrogates. Health care decisions by an agent on a
principal's behalf pursuant to this article shall have priority over
decisions by any other person, except as otherwise provided in the health
care proxy or in subdivision five of section two thousand nine hundred
eighty-three of this article.
§ 2983 Pub. Health. Determination of lack of capacity to make health
care decisions for the purpose of empowering agent.
1. Determination by attending physician. (a) A determination that a
principal lacks capacity to make health care decisions shall be made by
the attending physician to a reasonable degree of medical certainty. The
determination shall be made in writing and shall contain such attending
physician's opinion regarding the cause and nature of the principal's
incapacity as well as its extent and probable duration. The determination
shall be included in the patient's medical record. For a decision to
withdraw or withhold life-sustaining treatment, the attending physician
who makes the determination that a principal lacks capacity to make
health care decisions must consult with another physician to confirm such
determination. Such consultation shall also be included within the
patient's medical record.
(b) If an attending physician of a patient in a general hospital or
mental hygiene facility determines that a patient lacks capacity because of
mental illness, the attending physician who makes the determination must
be, or must consult, for the purpose of confirming the determination, with
a qualified psychiatrist. A record of such consultation shall be included
in the patient's medical record.
(c) If the attending physician determines that a patient lacks capacity
because of a developmental disability, the attending physician who makes
the determination must be, or must consult, for the purpose of confirming
the determination, with 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 promulgated by such commissioner. Such regulations shall
require that a physician or clinical psychologist possess specialized
training or three years experience in treating developmental disabilities.
A record of such consultation shall be included in the patient's medical
record.
(d) A physician who has been appointed as a patient's agent shall not
make the determination of the patient's capacity to make health care
decisions.
2. Request for a determination. If requested by the agent, an attending
physician shall make a determination regarding the principal's capacity to
make health care decisions for the purposes of this article.
3. Notice of determination. Notice of a determination that a principal
lacks capacity to make health care decisions shall promptly be given: (a)
to the principal, orally and in writing, where there is any indication of
the principal's ability to comprehend such notice; (b) to the agent; (c) if
the principal is in or is transferred from a mental hygiene facility, to
the facility director; and (d) to the conservator for, or committee of, the
principal.
4. Limited purpose of determination. A determination made pursuant to
this section that a principal lacks capacity to make health care decisions
shall not be construed as a finding that the patient lacks capacity for any
other purpose.
5. Priority of principal's decision. Notwithstanding a determination
pursuant to this section that the principal lacks capacity to make health
care decisions, where a principal objects to the determination of
incapacity or to a health care decision made by an agent, the principal's
objection or decision shall prevail unless the principal is determined by a
court of competent jurisdiction to lack capacity to make health care
decisions.
6. Confirmation of lack of capacity. (a) The attending physician shall
confirm the principal's continued incapacity before complying with an
agent's health care decisions, other than those decisions made at or about
the time of the initial determination made pursuant to subdivision one of
this section. The confirmation shall be stated in writing and shall be
included in the principal's medical record.
(b) The notice requirements set forth in subdivision three of this
section shall not apply to the confirmation required by this subdivision.
7. Effect of recovery of capacity. In the event the attending physician
determines that the principal has regained capacity, the authority of the
agent shall cease, but shall recommence if the principal subsequently loses
capacity as determined pursuant to this section.
§ 2984 Pub. Health. Provider's obligations.
1. A health care provider who is provided with a health care proxy shall
arrange for the proxy or a copy thereof to be inserted in the principal's
medical record if the health care proxy has not been included in such
record.
2. 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 hundred eighty-three of this article.
3. Notwithstanding subdivision two of this section, nothing in this
article shall be construed to require a private hospital to honor an
agent's health care decision that the hospital would not honor if the
decision had been made by the principal because the decision is contrary to
a formally adopted policy of the hospital that is expressly based on
religious beliefs or sincerely held moral convictions central to the
facility's operating principles and the hospital would be permitted by law
to refuse to honor the decision if made by the principal, provided:
(a) the hospital has informed the patient or the health care agent of
such policy prior to or upon admission, if reasonably possible; and
(b) the patient is transferred promptly to another hospital that is
reasonably accessible under the circumstances and is willing to honor the
agent's decision. If the agent is unable or unwilling to arrange such a
transfer, the hospital may intervene to facilitate such a transfer. If such
a transfer is not effected, the hospital shall seek judicial relief or
honor the agent's decision.
4. Notwithstanding subdivision two of this section, nothing in this
article shall be construed to require an individual as a health care
provider to honor an agent's health care decision that the individual would
not honor if the decision had been made by the principal because the
decision is contrary to the individual's religious beliefs or sincerely
held moral convictions, provided the individual health care provider
promptly informs the health care agent and the hospital of his or her
refusal to honor the agent's decision. In such event, the hospital shall
promptly transfer responsibility for the patient to another individual
health care provider willing to honor the agent's decision. The individual
health care provider shall cooperate in facilitating such transfer of the
patient.
§ 2985 Pub. Health. Revocation.
1. Means of revoking proxy. (a) A competent adult may revoke a health
care proxy 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.
(b) For the purposes of this section, every adult shall be presumed
competent unless determined otherwise pursuant to court order.
(c) A health care proxy shall also be revoked upon execution by the
principal of a subsequent health care proxy.
(d) The creation by the principal of written wishes or instructions
about health care, or limitations upon the agent's authority, shall not
revoke a health care proxy unless such wishes, instructions or
limitations expressly provide otherwise. Such wishes, instructions or
limitations shall constitute evidence of the principal's wishes for
purposes of subdivision two of section two thousand nine hundred
eighty-two of this article.
(e) The appointment of the principal's spouse as health care agent shall
be revoked upon the divorce or legal separation of the principal and
spouse, unless the principal specifies otherwise.
2. Duty to record revocation. (a) A physician who is informed of or
provided with a revocation of a health care proxy shall immediately (i)
record the revocation in the principal's medical record and (ii) notify the
agent and the medical staff responsible for the principal's care of the
revocation.
(b) Any member of the staff of a health care provider informed of or
provided with a revocation of a health care proxy pursuant to this
section shall immediately notify a physician of such revocation.
§ 2986 Pub. Health. Immunity.
1. Provider immunity. No health care provider or employee thereof shall
be subjected to criminal or civil liability, or be deemed to have engaged
in unprofessional conduct, for honoring in good faith a health care
decision by an agent, or for other actions taken in good faith pursuant to
this article.
2. Agent immunity. No person acting as agent pursuant to a health care
proxy shall be subjected to criminal or civil liability for making a health
care decision in good faith pursuant to this article.
§ 2987 Pub. Health. Liability for health care costs.
Liability for the cost of health care provided pursuant to an agent's
decision shall be the same as if the health care were provided pursuant to
the principal's decision.
§ 2988 Pub. Health. Requiring or prohibiting execution of proxy.
No person may require or prohibit the execution of a health care proxy by
an individual as a condition for providing health care services or
insurance to such individual.
§ 2989 Pub. Health. Effect on other rights.
1. A competent adult's failure to appoint a health care agent or to
provide the agent with specific health care instructions pursuant to this
article shall create no presumptions regarding the adult's wishes about
health care.
2. Nothing in this article creates, expands, diminishes, impairs or
supersedes any authority that a principal may have under law to make or
express decisions, wishes or instructions regarding health care, including
decisions about life sustaining treatment, whether or not expressed in a
health care proxy.
3. This article is not intended to permit or promote suicide, assisted
suicide, or euthanasia; accordingly, nothing herein shall be construed to
permit an agent to consent to any act or omission to which the principal
could not consent under law.
§ 2990 Pub. Health. Proxies executed in other states.
A health care proxy or similar instrument executed in another state or
jurisdiction in compliance with the law of that state or jurisdiction shall
be considered validly executed for purposes of this article.
§ 2991 Pub. Health. Creation and use of proxies in residential health
care and mental hygiene facilities.
1. Residential health care facilities and mental hygiene facilities shall
establish procedures:
(a) to provide information to adult residents about their right to create
a health care proxy under this article;
(b) to educate adult residents about the authority delegated under a
health care proxy, what a proxy may include or omit, and how a proxy is
created and revoked;
(c) to help ensure that each resident who creates a proxy while residing
at the facility does so voluntarily.
2. Such procedures shall be established in accordance with regulations
issued by the commissioners of health, mental health, and mental
retardation and developmental disabilities for facilities subject to their
respective regulatory authorities.
§ 2992 Pub. Health. Special proceeding authorized.
The health care provider, the conservator for, or committee of the
principal, members of the principal's family, a close friend of the
principal as defined in subdivision five of section two thousand nine
hundred sixty-one of this chapter, or the commissioner of health, mental
health, or mental retardation and developmental disabilities may commence a
special proceeding pursuant to article four of the civil practice law and
rules, in a court of competent jurisdiction, with respect to any dispute
arising under this article, including, but not limited to, a proceeding to:
1. determine the validity of the health care proxy;
2. have the agent removed on the ground that the agent (a) is not
reasonably available, willing and competent to fulfill his or her
obligations under this article or (b) is acting in bad faith; or
3. override the agent's decision about health care treatment on the
grounds that: (a) the decision was made in bad faith or (b) the decision is
not in accordance with the standards set forth in subdivision one or two of
section two thousand nine hundred eighty-two of this article.
§ 2993 Pub. Health. Regulations.
The commissioner of health, in consultation with the commissioners of the
office of mental health and the office of mental retardation and
developmental disabilities, shall establish such regulations as may be
necessary for the implementation of this article, subject to the provisions
of subdivision two of section two thousand nine hundred ninety-one of this
article.
§ 2994 Pub. Health. Rights to be publicized.
The commissioner of health shall prepare a statement summarizing the
rights, duties and requirements of this article and shall require that a
copy of such statement:
1. Be furnished to patients or their families at or prior to the time of
admission to a hospital, and to each member of the hospital's staff; and
2. Be posted in a public place in each hospital.
The statement of rights required by this section may be included in any
other statement of patients' rights required by other provisions of this
chapter.
