N.Y. Mental Hygiene Law 82.04 – Scope
* § 82.04 Scope.
Terms Used In N.Y. Mental Hygiene Law 82.04
- adult: means an individual eighteen years of age or older. See N.Y. Mental Hygiene Law 82.02
- advance directive: means a legally recognized written or oral instruction by an adult relating to the provision of health care to the adult if and when they become incapacitated, including but not limited to a health care proxy, a consent to the issuance of an order not to resuscitate or other orders for life-sustaining treatment recorded in a patient's medical record, or other legally-recognized statements of wishes or beliefs. See N.Y. Mental Hygiene Law 82.02
- decision-maker: means an adult who has executed, or seeks to execute, a supported decision-making agreement. See N.Y. Mental Hygiene Law 82.02
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- facilitator: means an individual or entity authorized by the office for people with developmental disabilities that works with and educates the decision-maker and his or her supporter or supporters about supported decision-making and supported decision-making agreements authorized under this article. See N.Y. Mental Hygiene Law 82.02
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- supported decision-making: means a way by which a decision-maker utilizes support from trusted persons in their life, in order to make their own decisions about their life, including, but not limited to, decisions related to where and with whom the decision-maker wants to live; decisions about finances; the services, supports, and health care the decision-maker wants to receive; and where the decision-maker wants to work. See N.Y. Mental Hygiene Law 82.02
- supported decision-making agreement: is a n agreement a decision-maker enters into with one or more supporters under this section that describes how the decision-maker uses supported decision-making to make their own decisions. See N.Y. Mental Hygiene Law 82.02
- supporter: means an adult who has voluntarily entered into a supported decision-making agreement with a decision-maker, agreeing to assist the decision-maker in making their own decisions as prescribed by the supported decision-making agreement, and who is not ineligible under section 82. See N.Y. Mental Hygiene Law 82.02
(a) If a decision-maker voluntarily enters into a supported decision-making agreement with one or more supporters, the decision-maker may, in the agreement, authorize the supporter to provide support to them in making their own decisions in areas they choose, including, but not limited to: gathering information, understanding and interpreting information, weighing options and alternatives to a decision, considering the consequences of making a decision or not making it, participating in conversations with third parties if the decision-maker is present and requests their participation, communicating the decision-maker's decision to third parties if the decision-maker is present and requests their participation, and providing the decision-maker support in implementing the decision-maker's decision.
(b) Nothing in this article, nor the existence of an executed supported decision-making agreement, shall preclude the decision-maker from acting independently of the supported decision-making agreement or executing, with or without the assistance of supporters under a supported decision-making agreement, a power of attorney under title fifteen of Article 5 of the general obligations law, health care proxy under Article 29-C of the public health law, or other advance directive.
(c) Notwithstanding the existence of a supported decision-making agreement, a decision-maker shall continue to have unrestricted access to their personal information without the assistance of a supporter.
(d) Notwithstanding the existence of a supported decision-making agreement, a decision-maker may request and receive assistance in making any decision that is not covered under the supported decision-making agreement at any time and from any person, regardless of whether that person is designated as a supporter in the supported decision-making agreement.
(e) A supported decision-making agreement made pursuant to this article may be evidence that the decision-maker has a less restrictive alternative to guardianship in place.
(f) The availability of supported decision-making agreements is not intended to limit the informal use of supported decision-making, or to preclude judicial consideration of such informal arrangements as less restrictive alternatives to guardianship.
(g) Execution of a supported decision-making agreement may not be a condition of participation in any activity, service, or program.
(h) If a decision-maker seeks from any person professional advice that would be otherwise covered by evidentiary privilege in accordance with sections forty-five hundred three, forty-five hundred four, forty-five hundred seven, forty-five hundred eight and forty-five hundred ten of the civil practice law and rules, the inclusion in the conversation of a supporter authorized by the supported decision-making agreement to provide support in the area in which the decision-maker seeks the professional advice shall not constitute a waiver of that privilege.
(i) Notwithstanding any other provision of law to the contrary, nothing within this article shall be construed to prohibit eligibility of a decision-maker for receipt of services or supports that they would have otherwise been entitled, including adult protective services, absent entering into a supported decision-making agreement under the provisions of this article.
(j) A supported decision-making agreement made between a decision-maker and his or her supporter or supporters after consultation and education, which is signed by a facilitator shall have the legal force and effect authorized under section 82.11 of this article.
* NB Effective 90 days from the date that the regulations issued in accordance with § 1 of chapter 481 of 2022 appear in the New York State Register or the date such regulations are adopted, whichever is later.