The following papers having been read:
Notice of Motion/Order to Show Cause 1
Cross Motion/Answering Affidavits 2
Upon the foregoing papers the motion by counsel for the respondent, the alleged incapacitated person, for an order granting partial judgment in her favor for summary judgment dismissing that part of the cross-petition seeking the validation and implementation of the health care proxy allegedly executed on October 8, 2019, is granted.
Pub. Health Law § 2981, titled Appointment of health care agent; health care proxy, reads in pertinent part:
2. Health care proxy; execution; witnesses. (a) A competent adult may appoint a health care agent by a health care proxy, 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 adults direction and in the adults 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 shall not act as witness to execution of the health care proxy.
The Health Care Proxy in question does not include a declaratory paragraph wherein the witnesses to the document attest that the principal appeared to execute the proxy willingly and free from duress.
Consequently, the Health Care Proxy dated October 8, 2019 is deemed void.
The foregoing constitutes the decision and order of this court.
Gary F. Knobel, J.