THIS ARTICLE IS A DISCUSSION OF NEW YORK'S FAMILY HEALTH CARE DECISIONS ACT. .

HEALTH CARE DECISION MAKING FOR INCAPACITATED PEOPLE
WHO HAVE NOT SIGNED A HEALTH CARE PROXY

by Ira Salzman


Goldfarb Abrandt Salzman & Kutzin LLP

MOST PEOPLE SHOULD SIGN A HEALTH CARE PROXY FORM

If you are like most people, it is a better idea to sign a health care proxy form rather than to rely on the laws of the State of New York to determine who would make health care decisions for you if you became mentally incapacitated. There are at least four reasons for this:

  1. The priority established by law may be inconsistent with your wishes. For example, you might want a sibling to make health care decisions for you, but under the law, parents have priority over siblings.
  2. There may be multiple individuals (i.e., children) who have the same priority to make health care decisions for you if you do not have a health care proxy. The law does not have an easily usable mechanism to establish who would make health care decisions for you if people with the same priority disagree.
  3. If you are relying on the statutory list, it means that you have probably not communicated your preferences to those closest to you. This means that whoever ends up making health care decisions for you will be forced to guess about what you would want under the circumstances. You could end up having the right person making decisions and still have a bad result.
  4. The authority of someone acting without a health care proxy is more limited than the authority of someone with a health care proxy.

For information about health care proxy forms click here.

WHO CAN MAKE HEALTH CARE DECISIONS FOR YOU
IF YOU HAVE NOT SIGNED A HEALTH CARE PROXY FORM?

Under New York’s Family Health Care Decisions Act, if you have not signed a health care proxy form and you become mentally incapacitated, health care decisions while you are in a hospital or residential care facility can be made for you by an individual called a "surrogate." (The rules with regard to who can serve as a surrogate and what the surrogate is authorized to do apply to all adults except the mentally retarded and the developmentally disabled, for whom there are somewhat different rules.)

Surrogates are authorized to serve in accordance with the following priority list. If a person with higher priority declines to act, then the next person on the list, in order of priority, has the right to act.

  1. A guardian specifically authorized by the court to make such decisions.
  2. Your spouse, if not legally separated from you, or your domestic partner.
  3. Your son or daughter 18 years of age or older.
  4. Your parent.
  5. Your brother or sister 18 years of age or older.
  6. Your close friend.

WHAT DECISIONS CAN A SURROGATE MAKE FOR ADULT PATIENTS?

Subject to certain restrictions, a surrogate can make any and all health care decisions on your behalf that you could make. This includes the authority to decide what treatment you will receive and the authority to terminate life support.

WHAT CRITERIA MUST A SURROGATE USE TO MAKE HEALTH CARE
DECISIONS FOR AN ADULT PATIENT?

If a surrogate chooses to make a health care decision for you, then he or she is required to make this decision:

  1. In accordance with your wishes, including your religious and moral beliefs, or
  2. If your wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with your best interest. An assessment of your best interest must include: consideration of the dignity and uniqueness of every person; the possibility and extent of preserving your life; the preservation, improvement or restoration of your health or functioning; the relief of your suffering; and any medical condition and such other concerns and values as a reasonable person in your circumstances would wish to consider.

WHEN CAN A SURROGATE TERMINATE LIFE SUPPORT
FOR AN ADULT PATIENT?

A surrogate is authorized to withhold or withdraw life-sustaining treatment from you under the following circumstances:

  1. Treatment would be an extraordinary burden to you and an attending physician determines, with the independent concurrence of another physician, that, to a reasonable degree of medical certainty and in accord with accepted medical standards, (A) you have an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or (B), you are permanently unconscious; or, in the alternative
  2. The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and that you have an irreversible or incurable condition, as determined by an attending physician, with the independent concurrence of another physician, to a reasonable degree of medical certainty, and in accord with accepted medical standards.

In a residential care facility the decision of a surrogate to terminate life support is subject to review by the facility's ethics committee. In a general hospital if the attending physician objects to the surrogate's decision to terminate life support, that decision is also subject to review by the facility's ethics committee.

HOW ARE HEALTH CARE DECISIONS FOR A MENTALLY INCAPACITATED ADULT MADE IF THERE IS NO HEALTH-CARE PROXY AND NO SURROGATE WILLING TO ACT?

If you have not signed a health care proxy and there is no surrogate willing to act, the staff at the hospital or residential facility where you reside or are being treated can make health care decisions for you. This authority includes the authority to make significant medical decisions and under certain limited circumstances, the authority to terminate life support.

WHAT STANDARDS DO HOSPITALS AND RESIDENTIAL CARE FACILITIES USE TO MAKE HEALTH CARE DECISIONS OR TO TERMINATE LIFE SUPPORT FOR ADULT PATIENTS?

The standards that the staff of a hospital or residential care facility use to make health care decisions for patients, other than decisions to terminate life support, are the same as those used by surrogates (see above). The staff of a hospital or residential care facility can terminate life support if the patient’s attending physician, with the independent concurrence of a second physician designated by the hospital, determines to a reasonable degree of medical certainty that

  1. Life-sustaining treatment offers you no medical benefit because you will die imminently, even if a treatment is provided; and
  2. The provision of life-sustaining treatment would violate accepted medical standards.

The hospital or residential care facility can also apply to the court for an order to terminate life support. The standard that a court can use in such a case is the same standard as used by a surrogate (see above).

WHAT LIABILITY DO HOSPITALS, RESIDENTIAL CARE FACILITIES AND SURROGATES HAVE FOR MAKING IMPROPER HEALTH CARE DECISIONS ON BEHALF OF A MENTALLY INCAPACITATED ADULT?

Surrogates, health-care providers and their employees cannot be subjected to criminal or civil liability for actions taken in good faith under the Family Health Care Decisions Act.

SPECIAL RULES CONCERNING THE MENTALLY RETARDED
AND THE DEVELOPMENATLLY DISABLED

There are special health care decisions making procedures that apply to adult mentally incapacitated people who suffer from mental retardation and/or developmental disabilities. The details of those procedures are beyond the scope of this article. However, if it is not possible for a health care decision to be made by using those special procedures, then, the decision can be made in the same way as it would be made for any other adult under the Family Health Care Decisions Act.

THIS ARTICLE IS ONLY A SUMMARY

Many of the rules concerning health care decision making by surrogates, hospitals and residential care facilities are quite detailed. This discussion is only meant to be a summary of those rules.

See also New York's Family Health Care Decisions Act