A competent adult may appoint a health care agent and every adult shall be presumed competent to appoint a health care agent unless he or she has been adjudged incompetent or unless a committee or guardian of the person has been appointed.
A validly executed health care proxy is 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 cannot not act as witness to the execution of the health care proxy.
For persons who reside in a mental hygiene facility 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 at least one witness shall be a qualified psychiatrist.
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 unless the proposed agent is related to the principal by blood, marriage or adoption.
The agent’s authority shall commence upon a determination that the principal lacks capacity to make health care decisions. The 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.
The health care proxy shall identify the principal and agent and indicate that the principal intends the agent to have authority to make health care decisions on the principal’s behalf. It may include the principal’s wishes or instructions about health care decisions, and limitations upon the agent’s authority. Also, it may include the principal’s wishes or instructions regarding organ and tissue donation and may limit the health care agent’s authority to consent to organ or tissue donation. Failure to state wishes or instructions shall not be construed to imply a wish not to donate.