NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5309A
SPONSOR: Skoufis TITLE OF BILL: An act to amend the public health law, in relation to
certain health care agents or surrogates and protecting patients
PURPOSE OR GENERAL IDEA OF BILL:
Permits a court to remove the authority of a health care agent or surro-
gate to make medical decisions for a beneficiary if the agent is subject
to an order of protection against the beneficiary; or has been arrested
or criminally charged with a criminal act that allegedly caused the
beneficiary's incapacitation.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill permits a court to remove a health care agent if
the agent is subject to an order of protection against the beneficiary
or has been arrested or criminally charged with a criminal act that
allegedly caused the beneficiary's incapacitation.
Section 2 of the bill makes corresponding changes to health surrogates.
JUSTIFICATION:
Allowing the person who is responsible for another person's death to
continue to be their healthcare agent or surrogate is disrespectful to
the person's family and friends. A person who is responsible for the
incapacitation of such person is not suitable to act in a rational
manner in making healthcare decisions and may not have that person's
best interests in mind. There are no explicit provisions under current
law that provide for removal of such persons as healthcare agents or
surrogates. This bill permits a court to remove such persons as health-
care agents or surrogates.
PRIOR LEGISLATIVE HISTORY:.:
2012 - S.7765 - Referred to Rules
FISCAL IMPACT:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
5309--A
2013-2014 Regular Sessions
IN ASSEMBLY
February 22, 2013
___________
Introduced by M. of A. SKOUFIS, ZEBROWSKI, GUNTHER, RAIA, SCHIMMINGER,
GALEF, JAFFEE, MONTESANO, TITONE, BRONSON, ROBERTS, OTIS -- Multi-
Sponsored by -- M. of A. ARROYO, COOK, DUPREY, GIBSON, JACOBS, PERRY,
ROBINSON, SCHIMEL, SEPULVEDA, WEISENBERG -- read once and referred to
the Committee on Health -- reported and referred to the Committee on
Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the public health law, in relation to certain health
care agents or surrogates and protecting patients
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 2992 of the public health law, as added by chapter
2 752 of the laws of 1990, is amended to read as follows:
3 § 2992. Special proceeding authorized. The health care provider, the
4 conservator for, or committee of the principal, members of the princi-
5 pal's family, a close friend of the principal as defined in subdivision
6 five of section two thousand nine hundred sixty-one of this chapter, or
7 the commissioner of health, mental health, or [mental retardation and]
8 developmental disabilities may commence a special proceeding pursuant to
9 article four of the civil practice law and rules, in a court of compe-
10 tent jurisdiction, with respect to any dispute arising under this arti-
11 cle, including, but not limited to, a proceeding to:
12 1. determine the validity of the health care proxy;
13 2. have the agent removed on the ground that the agent (a) is not
14 reasonably available, willing and competent to fulfill his or her obli-
15 gations under this article [or]; (b) is acting in bad faith; or (c) is
16 the subject of an order of protection protecting the principal or has
17 been arrested or charged for a criminal act that allegedly caused the
18 principal's lack of capacity or substantially injured or impaired the
19 health status of the principal, provided that the application of this
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05345-02-3
A. 5309--A 2
1 provision in a particular case may be waived or modified in the interest
2 of justice; or
3 3. override the agent's decision about health care treatment on the
4 grounds that: (a) the decision was made in bad faith or (b) the decision
5 is not in accordance with the standards set forth in subdivision one or
6 two of section two thousand nine hundred eighty-two of this article.
7 § 2. Subdivision 2 of section 2994-r of the public health law, as
8 added by chapter 8 of the laws of 2010, is amended to read as follows:
9 2. Court orders designating surrogate. A court of competent jurisdic-
10 tion may designate any individual from the surrogate list to act as
11 surrogate, regardless of that individual's priority on the list, if the
12 court determines that such appointment would best accord with the
13 patient's wishes or, if the patient's wishes are not reasonably known,
14 with the patient's best interests. The court may remove a surrogate on
15 the ground that the surrogate: (a) is not reasonably available, willing
16 and competent to fulfill his or her obligations under this article; (b)
17 is acting in bad faith; or (c) is the subject of an order of protection
18 protecting the patient or has been arrested or charged for a criminal
19 act that allegedly caused the patient's lack of capacity or substantial-
20 ly injured or impaired the health status of the patient, provided that
21 the application of this provision in a particular case may be waived or
22 modified in the interest of justice. Unless otherwise determined by a
23 court, no surrogate decision made prior to an order designating a surro-
24 gate shall be deemed to have been invalid because of the issuance of a
25 designating order.
26 § 3. This act shall take effect immediately.
