What happens if a person cannot make their own health care decisions, and they don’t have a health care proxy? In New York, the Family Health Care Decisions Act (the “Act”) was enacted in 2010 to address this problem. The law sets forth rules regarding who can decide on medical treatment for an incapacitated patient and under what circumstances, when they haven’t executed a health care proxy.
When does the Family Health Care Decisions Act apply?
Under the law, patients must lack “decision-making capacity” as determined by an attending practitioner and the concurring opinion of a health or social services practitioner. If this determination is made, the attending practitioner must inform the patient of this fact if there is an indication that the patient can comprehend the information.
In addition, the statute applies only when patients are in a hospital or residential health care facility, or with respect to hospice decisions made anywhere. If a patient is being treated in a medical office, it does not apply.
Who can be a “Surrogate” health care decision-maker?
Where a patient lacks decision-making capacity, health care providers must first look to the patient’s Surrogate if they have one. A Surrogate can be:
- A health care proxy
- A court-appointed guardian of the person
- If neither exists, one of the following individuals in order:
- A spouse, if not legally separated
- A child 18+ years of age
- A parent
- A sibling 18+ years of age
- “A close friend” who has “maintained such regular contact with the patient as to be familiar with the patient’s activities, health, religious or moral beliefs” and provides a signed statement to that effect.
What are a Surrogate’s obligations?
A Surrogate must make health care decisions “in accordance with the patient’s wishes”, including their religious and moral beliefs. If the Surrogate doesn’t know and cannot, through reasonable diligence, determine the patient’s wishes, they must act in the patient’s best interests. The Act provides a list of factors to be considered by a Surrogate in this situation, with additional factors that apply where the decision involves withholding or withdrawing life-sustaining treatment. If the patient regains their decision-making capacity, the Surrogate’s right to act ends.
Importantly, if a Surrogate chooses to act against the patient’s “sincerely held religious beliefs or moral convictions,” they are allowed to do so without facing liability. However, the Surrogate must promptly inform the patient.
Who makes health care decisions if there is no Surrogate?
The hospital or residential care facility must identify a decision-maker within a reasonable time after the patient is admitted. If there is no Surrogate, different standards apply depending on the level of treatment the patient requires.
Routine medical treatment decisions, including dental care performed under local anesthesia, can be made by an attending practitioner. In the case of major medical treatment, which includes the use of a general anesthetic, “involves any significant risk” or “involves any significant invasion of bodily integrity requiring an incision,” the attending practitioner must make a recommendation, with a concurring independent determination by another health care provider. Higher standards apply to decisions regarding the withholding or withdrawal of life-sustaining treatment or hospice care.
Ideally, everyone over the age of 18 should name a representative in a health care proxy who knows their wishes and can act on their behalf if they are unable to do so. A living will is also helpful. In the absence of that, if you become incapacitated, New York law will decide who makes decisions for you instead of you choosing a trusted person.
A health care proxy and living will are essential parts of a comprehensive estate plan, along with a will, a power of attorney and sometimes a trust. If you don’t have an estate plan or haven’t updated it in a while, contact one of our attorneys.