NY State Senate Bill 2009-S2039

Senate Bill S2039

2009-2010 Legislative Session

Provides for clarification on advance directives for health care, including health care proxies and living wills

download bill text pdf

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Feb 11, 2009	referred to health

2009-S2039 (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd Pub Health L, generally

2009-S2039 (ACTIVE) - Summary

Provides for clarification on advance directives for health care, including health care proxies and living wills; defines terms; provides updated advance care directives form.

2009-S2039 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2039

 TITLE OF BILL :
An act to amend the public health law, in relation to health care
proxies and living wills

 PURPOSE :
To statutorily permit the use of Living Wills to document a person's
wishes concerning withholding or termination of life sustaining
treatment, including the administration or withholding of artificial
nutrition and hydration.

 SUMMARY OF PROVISIONS :
Section One: Amends Section 2980 of the Public Health Law to define:
1) an Advance Directive for Health Care as referring to a document
that either appoints a health care agent in a Health Care Proxy or
contains a Living Will; and 2) a Living Will as a document which
expresses a person's wishes, instructions and/or limitations about his
or her medical care, including directions for the providing,
withholding or withdrawal of life sustaining treatment and
artificially provided nutrition and hydration.

Section Two: Amends Section 2981 of the Public Health Law to provide
that among other things a competent adult may execute a Living Will.

Section Three: Amends Section 2982 of the Public Health Law to provide

that a Living Will shall constitute evidence of a person's wishes
regarding the administration of artificial nutrition and hydration;
however it is not the exclusive means for a person to express his or
her wishes on this issue.

Section Four: Amends Section 2984 of the Public Health Law to provide
that a health care provider who is provided with an Advance Directive
for health care shall arrange for it to be inserted in the principal's
medical record.

Section Five: Amends Section 2985 of the Public Health Law pertaining
to revocation of advance directives for health care i.e. Health Care
Proxies and Living Wills.

Section Six: Amends Section 2988 of the Public Health Law to provide
that no person may require or prohibit the execution of a Living Will
by an individual as a condition precedent to providing health care
services or insurance to such individual.

Section Seven: Amends Section 2989 of the Public Health Law to provide
that a competent adult's failure to make a Living Will creates no
presumptions regarding the adult's wishes about health care.

Section Eight: Amends Section 2990 of the Public Health Law to provide
that Living Wills when executed in compliance with the law of another
state are valid in New York.

Section Nine: Amends Section 2991 of the Public Health Law to require
residential health care facilities and mental hygiene facilities to
educate their residents about their rights to create Advance Health
Care Directives, including Living Wills.

Section Ten: Provides that this Act shall take effect immediately.

 EXISTING LAW :
Public Health Law Article 29-C provides for the appointment of health
care agents and authorizes the use of Health Care Proxies. Section
2981 of the Public Health Law in particular provides that a competent
adult may appoint a health care agent by a Health Care Proxy (sample
form provided), signed and dated by the adult in the presence of two
adult witnesses who shall sign the proxy. The health care agent under
Section 2982 of the Public Health Law, subject to any limitations in
the Health Care Proxy, has the authority to make any and all health
care decisions on the principal's behalf that the principal could
make.

 JUSTIFICATION :
New York is one of only three states (Massachusetts and Michigan being
the other two) that does not have a Living Will statute The method to
document one's wishes concerning withholding or termination of life
sustaining treatment, including the administration or withholding of
artificial nutrition and hydration, should be statutorily recognized
in New York and the requirements clearly set forth. This proposal
defines a Living Will, sets forth the execution requirements of a
Living Will and acknowledges that Living Wills are statutorily
recognized and valid in New York and shall constitute evidence of a
person's wishes concerning their own health care. This legislation,
however, does not suggest the enactment of a form Living Will, as was
done with Health Care Proxies.  Rather it recognizes that the
expression of an individual's wishes concerning end of life medical
treatment is very personal, influenced by one's personal experiences
and moral, ethical and religious beliefs.  Thus this legislation only
modifies the current Health Care Proxy form and statutorily recognizes
Living Wills.

 LEGISLATIVE HISTORY :
S.5270/A.8995 of 2007-2008

 FISCAL. IMPLICATIONS :
None.

 LOCAL FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
Immediately.

2009-S2039 (ACTIVE) - Bill Text download pdf

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

                                  2039

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Health

AN ACT to amend the public health law, in relation to health care  prox-
  ies and living wills

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

  Section 1. Section 2980 of the public health law is amended by  adding
two new subdivisions 1-a and 9-a to read as follows:
  1-A.    "ADVANCE  DIRECTIVES  FOR HEALTH CARE" REFERS TO A DOCUMENT OR
DOCUMENTS THAT (A) APPOINTS A HEALTH CARE AGENT IN A HEALTH CARE  PROXY,
AND/OR (B) CONTAINS A LIVING WILL.
  9-A. "LIVING WILL" MEANS A DOCUMENT WHICH EXPRESSES A PERSON'S WISHES,
INSTRUCTIONS  AND/OR  LIMITATIONS  ABOUT  THEIR MEDICAL CARE, INCLUDING,
WITHOUT LIMITATION DIRECTIONS FOR THE PROVIDING,  WITHHOLDING  OR  WITH-
DRAWAL  OF LIFE SUSTAINING TREATMENT AND ARTIFICIALLY PROVIDED NUTRITION
AND HYDRATION.
  S 2. The section heading, subdivision 1, the subdivision  heading  and
paragraph  (a)  of  subdivision  2,  and  paragraphs (d), (e) and (f) of
subdivision 5 of section 2981 of the public  health  law,  as  added  by
chapter 752 of the laws of 1990, paragraph (f) of subdivision 5 as added
by chapter 540 of the laws of 2000, are amended to read as follows:
  [Appointment  of  health care agent; health care proxy] ADVANCE DIREC-
TIVE FOR HEALTH CARE. 1.   Authority  to  appoint  agent;  EXECUTION  OF
LIVING  WILLS;  presumption  of  competence.  (a)  A competent adult may
[appoint a health care] EXECUTE A HEALTH  CARE  PROXY  THAT  APPOINTS  A
HEALTH agent in accordance with the terms of this article.
  (b) A COMPETENT ADULT MAY EXECUTE A LIVING WILL.
  (C)  For  the  purposes of this section, every adult shall be presumed
competent to appoint a health care agent AND TO EXECUTE  A  LIVING  WILL
unless  such  person has been adjudged incompetent or otherwise adjudged
not competent to appoint a health care agent  OR  TO  EXECUTE  A  LIVING

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02133-01-9

S. 2039                             2

WILL, or unless a committee or guardian of the person has been appointed
for  the  adult  pursuant  to  article [seventy-eight] EIGHTY-ONE of the
mental hygiene law or  article  seventeen-A  of  the  surrogate's  court
procedure act.
  [Health  care  proxy]  ADVANCE  DIRECTIVES FOR HEALTH CARE; execution;
witnesses. (a) A competent adult may appoint a health care  agent  by  a
health  care  proxy,  signed  and  dated  by the adult AT THE END OF THE
HEALTH CARE PROXY in the presence  of  two  adult  witnesses  who  shall
[also]  sign  AT  THE END OF 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 HEALTH CARE proxy will-
ingly  and free from duress. The person appointed as agent shall not act
as witness to execution of the [health care] proxy. A LIVING WILL  WHICH
SATISFIES  THE EXECUTION AND WITNESS REQUIREMENTS OF A HEALTH CARE PROXY
AS SET FORTH IN THIS PARAGRAPH SHALL CREATE A REBUTTABLE PRESUMPTION  OF
A PERSON'S WISHES CONCERNING THEIR HEALTH CARE. NOTWITHSTANDING ANYTHING
TO THE CONTRARY THE WITNESS REQUIREMENTS ARE OPTIONAL AND ARE NOT MANDA-
TORY TO CREATE A VALID LIVING WILL.
  (d) A health care proxy may, but need not, be in the following form:
                             Health Care Proxy
  THIS  FORM CAN BE USED TO NAME A PERSON YOU WOULD LIKE TO MAKE MEDICAL
OR HEALTH CARE DECISIONS FOR YOU IF YOU ARE UNABLE TO  DO  SO  YOURSELF.
THIS  PERSON IS CALLED A HEALTH CARE AGENT. IF A HEALTH CARE PROXY AND A
LIVING WILL HAVE BEEN EXECUTED, THE AGENT'S  DIRECTIONS  IN  THE  HEALTH
CARE PROXY SHALL TAKE PRECEDENCE OVER THE LIVING WILL.
  1.  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.
  2. This health care proxy shall take effect  in  the  event  I  become
unable to make my own health care decisions.
  3.  NOTE:  Although not necessary, and neither encouraged nor discour-
aged, 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 OR YOU MAY  WISH  TO
EXECUTE A LIVING WILL:
  ______________________________________________________________________
  ______________________________________________________________________
  ______________________________________________________________________
  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.
  4. IN ADDITION TO OTHER POWERS GRANTED BY  ME  IN  THIS  DOCUMENT,  MY
AGENT  SHALL HAVE THE POWER AND AUTHORITY TO SERVE AS MY PERSONAL REPRE-
SENTATIVE FOR ALL PURPOSES  OF  THE  HEALTH  INSURANCE  PORTABILITY  AND
ACCOUNTABILITY  ACT  (HIPPA).  MY AGENT IS AUTHORIZED TO EXECUTE ANY AND
ALL RELEASES AND OTHER DOCUMENTS NECESSARY TO OBTAIN  DISCLOSURE  OF  MY
PATIENT  RECORDS  AND OTHER MEDICAL INFORMATION SUBJECT TO AND PROTECTED
UNDER HIPPA.
  5. 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

S. 2039                             3

address  and  telephone  number  of  alternate  agent) as my health care
agent.
  6. ORGAN AND/OR TISSUE DONATION (OPTIONAL):
  I HEREBY MAKE ANATOMICAL GIFTS TO BE EFFECTIVE UPON MY DEATH OF:
  (CHECK ANY THAT APPLY)
  [ ] ANY NEEDED ORGANS AND/OR TISSUES.
  [ ] THE FOLLOWING ORGANS AND/OR TISSUES:

  ______________________________________________________________________

  ______________________________________________________________________
  [ ] LIMITATIONS:
  IF  YOU  DO  NOT  STATE YOUR WISHES OR INSTRUCTIONS ABOUT ORGAN AND/OR
TISSUE DONATION ON THIS FORM, IT WILL NOT BE TAKEN TO MEAN THAT  YOU  DO
NOT  WISH  TO  MAKE  A  DONATION  OR  PREVENT A PERSON, WHO IS OTHERWISE
AUTHORIZED BY LAW, TO CONSENT TO A DONATION ON YOUR BEHALF.
  7. 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 anoth-
er  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] ADVANCE DIRECTIVES FOR HEALTH CARE 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] AN ADVANCE DIRECTIVE FOR HEALTH CARE 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.
  S 3. Subdivision 2 of section  2982  of  the  public  health  law,  as
amended  by chapter 230 of the laws of 2004, is amended and a new subdi-
vision 5 is added to read as follows:
  2. Decision-making standard. After consultation with a licensed physi-
cian, 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 inter-
ests;  provided,  however,  that if the principal's wishes regarding the
administration of artificial nutrition and hydration are not  reasonably

S. 2039                             4

known  and  cannot  with  reasonable diligence be ascertained, the agent
shall not have the authority to make decisions regarding these measures.
A LIVING WILL SHALL CONSTITUTE EVIDENCE OF A PERSON'S  WISHES  REGARDING
THE  ADMINISTRATION  OF  ARTIFICIAL NUTRITION AND HYDRATION:  HOWEVER, A
LIVING WILL SHALL NOT BE THE EXCLUSIVE MEANS FOR A PRINCIPAL TO  EXPRESS
THEIR  WISHES REGARDING ARTIFICIAL NUTRITION AND HYDRATION AND SHALL NOT
BE THE EXCLUSIVE MEANS FOR THE AGENT TO REASONABLY KNOW OR ASCERTAIN THE
PRINCIPAL'S WISHES REGARDING THE ADMINISTRATION OF ARTIFICIAL  NUTRITION
AND HYDRATION.
  5.  NOTWITHSTANDING  ANY PROVISION IN THIS ARTICLE TO THE CONTRARY, IN
THE EVENT A DECLARANT HAS EXECUTED BOTH A HEALTH CARE PROXY AND A LIVING
WILL, THE DECISIONS BY THE HEALTH CARE AGENT DULY DESIGNATED UNDER  THIS
ARTICLE  REGARDING  MEDICAL TREATMENT INCLUDING THE PROVIDING, WITHHOLD-
ING, OR WITHDRAWAL OF LIFE-SUSTAINING TREATMENT OR ARTIFICIALLY PROVIDED
NUTRITION OR HYDRATION, SHALL TAKE PRECEDENCE OVER A LIVING  WILL  OF  A
DECLARANT, UNLESS A LIVING WILL SPECIFICALLY PROVIDES OTHERWISE.
  S 4. Subdivisions 1 and 2 of section 2984 of the public health law, as
added  by  chapter  752  of  the  laws  of  1990, are amended to read as
follows:
  1. A health care provider who is provided with [a health  care  proxy]
ADVANCE DIRECTIVES FOR HEALTH CARE 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]  ADVANCE  DIRECTIVES  FOR  HEALTH
CARE  and  pursuant to the provisions of subdivision five of section two
thousand nine hundred eighty-three of this article.
  S 5. Subdivisions 1 and 2 of section 2985 of the public health law, as
added by chapter 752 of the  laws  of  1990,  are  amended  to  read  as
follows:
  1. Means of revoking [proxy] ADVANCE DIRECTIVES FOR HEALTH CARE. (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 evidenc-
ing a specific intent to revoke the HEALTH CARE proxy OR LIVING WILL.
  (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 AND A LIVING WILL SHALL ALSO
BE REVOKED UPON EXECUTION BY THE PRINCIPAL OF A SUBSEQUENT LIVING WILL.
  (d)  The  creation by the principal of A LIVING WILL OR written wishes
or instructions about health  care,  or  limitations  upon  the  agent's
authority,  shall not revoke a health care proxy unless such LIVING WILL
OR wishes, instructions or limitations expressly provide otherwise. Such
LIVING WILL OR OTHER WRITTEN wishes, instructions or  limitations  shall
constitute  evidence  of the principal's wishes for purposes of subdivi-
sion two of section two thousand nine hundred eighty-two of  this  arti-
cle.
  (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] AN ADVANCE DIRECTIVE
FOR HEALTH CARE shall immediately (i) record the revocation in the prin-

S. 2039                             5

cipal'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] AN ADVANCE DIRECTIVE
FOR HEALTH CARE pursuant to this  section  shall  immediately  notify  a
physician of such revocation.
  S 6. Section 2988 of the public health law, as added by chapter 752 of
the laws of 1990, is amended to read as follows:
  S 2988. Requiring or prohibiting execution of proxy OR LIVING WILL. No
person may require or prohibit the execution of a health care proxy OR A
LIVING  WILL  by  an individual as a condition for providing health care
services or insurance to such individual.
  S 7. Subdivisions 1 and 2 of section 2989 of the public health law, as
added by chapter 752 of the  laws  of  1990,  are  amended  to  read  as
follows:
  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  OR  A  COMPETENT ADULT'S FAILURE TO EXECUTE A LIVING WILL
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, includ-
ing  decisions about life sustaining treatment, whether or not expressed
in a health care proxy OR A LIVING WILL.
  S 8. Section 2990 of the public health law, as added by chapter 752 of
the laws of 1990, is amended to read as follows:
  S 2990. Proxies AND LIVING WILLS executed in other  states.  A  health
care  proxy,  A  LIVING  WILL  or similar instrument executed in another
state or jurisdiction in compliance with the law of that state or juris-
diction shall be considered validly executed for purposes of this  arti-
cle.
  S  9. Subdivision 1 of section 2991 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
  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] AN ADVANCE DIRECTIVE FOR HEALTH CARE  under
this article;
  (b)  to educate adult residents about the authority delegated under [a
health care proxy] AN ADVANCE DIRECTIVE FOR HEALTH CARE,  what  a  proxy
AND/OR  LIVING  WILL  may include or omit, and how a proxy AND/OR LIVING
WILL is created and revoked;
  (c) to help ensure that each  resident  who  creates  a  proxy  AND/OR
LIVING WILL while residing at the facility does so voluntarily.
  S 10. Subdivision 1 of section 2992 of the public health law, as added
by chapter 752 of the laws of 1990, is amended to read as follows:
  1. determine the validity of the health care proxy OR LIVING WILL;
  S 11. This act shall take effect immediately.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.