* § 82.12 Limitations on liability.

Terms Used In N.Y. Mental Hygiene Law 82.12

  • 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
  • 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
  • financial exploitation: has the meaning given in § 473 of the social services law. See N.Y. Mental Hygiene Law 82.02
  • good faith: means honest in fact and in the observance of reasonable standards of fair dealing. See N.Y. Mental Hygiene Law 82.02
  • Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
  • physical coercion: means to place under duress, menace, or threaten physical violence or imprisonment. See N.Y. Mental Hygiene Law 82.02
  • 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
  • undue influence: means moral or mental coercion that leads someone to carry out the wishes of another instead of their own because they are unable to refuse or resist. See N.Y. Mental Hygiene Law 82.02

(a) Subdivisions (b), (c) and (d) of this section shall apply only to decisions made pursuant to supported decision-making agreements created in accordance with this article which are signed by a facilitator and following a recognized supported decision-making facilitation or education process, as prescribed by regulations governing the facilitation and education processes promulgated by the office for people with developmental disabilities.

(b) A person shall not be subject to criminal or civil liability and shall not be determined to have engaged in professional misconduct for an act or omission if the act or omission is done in good faith and in reliance on a decision made by a decision-maker pursuant to a duly executed supported decision-making agreement created in accordance with this article.

(c) Any health care provider that provides health care based on the consent of a decision-maker, given with support or assistance provided through a duly executed supported decision-making agreement created in accordance with this article, shall be immune from any action alleging that the decision-maker lacked capacity to provide informed consent, unless the entity, custodian, or organization had actual knowledge or notice that the decision-maker had revoked the supported decision-making agreement, or that the supporter had committed abuse, physical coercion, undue influence, or financial exploitation with respect to the decision to grant consent.

(d) Any public or private entity, custodian, or organization that discloses personal information about a decision-maker in reliance on the terms of a duly executed supported decision-making agreement created in accordance with this article, to a supporter authorized by the terms of the supported decision-making agreement to assist the decision-maker in accessing, collecting, or obtaining that information under subdivision (e) of section 82.05 of this article, shall be immune from any action alleging that it improperly or unlawfully disclosed such information to the supporter unless the entity, custodian, or organization had actual knowledge that the decision-maker had revoked such authorization.

(e) This section may not be construed to provide immunity from actions alleging that a health care provider, or other third party, has done any of the following:

1. caused personal injury as a result of a negligent, reckless, or intentional act;

2. acted inconsistently with the expressed wishes of a decision-maker;

3. failed to provide information to either decision-maker or their supporter that would be necessary for informed consent; or

4. otherwise acted inconsistently with applicable law.

(f) The existence or availability of a supported decision-making agreement does not relieve a health care provider, or other third party, of any legal obligation to provide services to individuals with disabilities, including the obligation to provide reasonable accommodations or auxiliary aids and services, including, but not limited to, interpretation services and communication supports to individuals with disabilities under the federal Americans with Disabilities Act (42 U.S.C. § 12101).

* 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.

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