New Law Provides Greater Protections for Incapacitated Individuals

If you become unable to express your wishes regarding your health care and treatment, who gets to make these decisions for you? In New York, the answer to this question has recently changed for many people.

Health Care Proxy vs. No Healthy Care Proxy

For those who have a health care proxy, the answer is straightforward and has not changed. A health care proxy allows a person to designate a surrogate decision maker who will be responsible for treatment decisions if he or she is incapacitated. However, according to a New York Senate press release, only 20 percent of people sign health care proxies, leaving many people without this protection.

For those who do not have a health care proxy, the new Family Health Care Decisions Act (FHCDA) makes it easier for loved ones to make important medical decisions.

Previously, in the event that a person without a health care proxy was incapacitated, doctors in New York hospitals were required to provide life-sustaining treatment until a court order provided otherwise. Family members or loved ones wishing to make treatment decisions were required to take the matter before a judge. This often came as a surprise to spouses, who assumed a higher degree of decision-making ability based on their relationship.

Under the FHCDA, after a hospital patient has been found to lack the capacity to make treatment decisions for him- or herself, family members and others close to the patient may be given the authority to make decisions as a surrogate.

Legally Defined Surrogates and Patient Protections

This law establishes a sequence of individuals who can serve as a surrogate, listed in order of priority:

  • A court-appointed guardian
  • The spouse or domestic partner
  • A child who is 18 years or older
  • A parent
  • A sibling who is 18 years or older
  • A close adult friend or relative

Particular individuals are specifically excluded from serving as surrogates. For example, an employee of the hospital cannot serve as a surrogate unless the employee and the patient had a close relationship before the patient entered the hospital.

In addition to outlining the individuals who can serve as a surrogate and the hierarchy of such individuals, the FHCDA includes safeguards for the patient. Two separate physicians must assess the capacity of the individual potentially subject to a surrogacy.

A surrogate must make decisions in consultation with medical providers and must follow specific safeguards when selecting a plan for treatment or care. Life-sustaining care can only be terminated when the patient has a terminal condition, will not regain consciousness or has an irreversible condition that will cause great suffering.

Health Care Proxies Offer Protection

This change has significant consequences for those who do not have a health care proxy in place, as it makes it easier for a loved one who is familiar with an incapacitated person’s interests and intent to make important health care decisions. However, it does not provide the full protections that a health care proxy affords.

The default order of priority under the law may not match an individual’s wishes. If you would prefer that your adult child make health care decisions for you instead of your spouse, the default laws will not accommodate this wish. You will need a health care proxy.

Furthermore, the enactment of this law does not fully account for situations where multiple people fall into the same category and disagree regarding the treatment of an incapacitated person. If you have two children over the age of 18 and they disagree as to the appropriate treatment, court action may be required.

To avoid such situations, it is important to have a health care proxy in place. Speak with a knowledgeable estate planning attorney to discuss your options and execute the appropriate documents to protect your interests.