The Family Health Care Decisions Act

by Jeffrey G. Abrandt, Esq. Goldfarb Abrandt & Salzman LLP

A New Law Permits Health Care Decisions 
to Be Made For Incapacitated People in New York 
Who Have Not Signed a Health Care Proxy

On March 16, 2010, Governor David Paterson signed into law the Family Health Care Decisions Act, effective June 1, 2010, which for the first time will permit family and/or friends to make health care decisions for critically or chronically incapacitated patients who do not have a health care proxy. New York became the forty-ninth state to pass surrogate decisions making statutes.

What Is The Family Health Care Decisions Act?

The Family Health Care Decisions Act permits the appointment of a “surrogate” decision maker for an incapacitated patient in a hospital or residential care facility, i.e. a nursing home, when they do not have a health care proxy. A “health care proxy” allows an individual to authorize another adult of their choosing to make medical decisions on their behalf should he or she become incapacitated due to illness or a debilitating accident.

Signing a health care proxy in advance is still very important and clearly the best way for a person to ensure their health care is provided as he or she would desire. Unfortunately, most New Yorkers still have not signed a health care proxy and, prior to passage of the Family Health Care Decisions Act, there was no clear instruction to medical facilities or families—outside of a court order–on how to make decisions for an incapacitated person. With the enactment of this law in New York the family, friends, or guardian of a person who has failed to sign a health care proxy has a non-judicial avenue to designate a surrogate to make health care decisions—including the authority to terminate life support.

New Law Applies To “Incapacitated” Hospital Patients Or Nursing Home Residents Without A Health Care Proxy

This law applies to a person over the age of 18 who is in a hospital or nursing home and who is determined by an attending physician to be unable by reason of his or her illness to participate in making health care decisions. If the attending physician determines the patient is unable to make medical decisions a second physician must then confirm this determination. If the patient is deemed incapacitated and does not have a health care proxy, then the Family Health Care Decisions Act designates how a surrogate will be chosen.

There are similar but special decision making laws for adults who are mentally retarded and/or have developmental disabilities. The new law does not apply to children under 18 either because a parent or legal guardian makes their medical decisions. The details of those procedures for special needs adults and minors are beyond the scope of this article and will not be discussed here.

Choosing A “Surrogate”

A “surrogate” is the person selected to make health care decisions on behalf of a patient. The Family Health Care Decisions Act lists the order of who are to serve as a surrogate for the patient. The surrogates are listed in order of priority:

  1. Court appointed guardian for an already determined incapacitated adult
  2. Spouse or domestic partner
  3. Child over eighteen years old
  4. Parent
  5. Sibling over eighteen years old
  6. Close friend or relative (other than spouse, adult child, parent, brother or sister) who has maintained such regular contact with the patient as to be familiar with the patient’s activities, health, and religious or moral belief, and who presents a signed statement to that effect to the attending physician

Surrogate Liability

The surrogate has no financial responsibility for the medical care they determine is in the best interests of the incapacitated patient unless they have an independent obligation under law, such as a spouse. A surrogate, health-care provider or its employee will not be subject to criminal or civil liability for action taken in good faith under the Family Health Care Decisions Act.


The highest-ranking surrogate who accepts the position will have the authority to make all health care decisions, including whether or not to initiate, withdraw or withhold life-sustaining treatment. In order to make these decisions, hospitals must give surrogates access to the patient’s medical information, medical records, diagnosis, prognosis, the nature and consequences of the health care, and the benefits and risks of the treatment.

The surrogate is required, after review of the medical information, to base decisions on the patient’s known religious and moral beliefs. If the religious and ethical beliefs are not known, the decision is required to be made according to the patient’s “best interest” which is defined as a combination of: a consideration of the dignity and uniqueness of every person; the possibility and extent of preserving the patient’s life; the preservation, improvement or restoration of the patient’s health or function; the relief of the patient’s suffering; and any medical condition and such other concerns and values as a reasonable person in the patient’s circumstances would wish to consider.

Stringent Rules On End Of Life Care

Should a surrogate face the difficult decision of whether to withhold or withdraw life-sustaining treatment, stringent additional conditions must be met. The new law requires that the surrogate can make this decision only if the treatment would be an extraordinary burden to the patient and an attending physician determines, with independent concurrence of another physician, that, to a reasonable degree of medical certainty and in accord with accepted medical standards:

  • (A) patient had illness/injury expected to cause death within six months, whether or not treatment is provided; or
  • (B) patient is permanently unconscious, or
  • (C) 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 the patient has an irreversible or incurable condition, as determined by attending physician with the independent concurrence of another physician

Withdrawal Of Life Sustaining Treatment Requires A Further Level Of Protection

Before any surrogate makes a decision to withdraw life sustaining treatment, the attending physician plus an independent concurring physician must, for a second time, determine that the patient remains incapacitated and unable to make his or her own decision. Only if the incapacity is found to still exist will the surrogate decision be honored.

Rules When Medical Opinion Is Divided

If there is a conflict of opinions between physicians on determinations of capacity, the case will be referred to an interdisciplinary Ethics Review Committees which the new law requires be created within each hospital and nursing home. This Ethics Review Committee will then make a decision on whether the patient is incapacitated and whether a surrogate can make the decision.

The Law Provides For Legal Challenges To The Appointment Of A Surrogate Or The Surrogate’s Decision

A person with a relationship to the patient and any member of the hospital Ethics Review Committee who has objections to the incapacity determination, the choice of surrogate, or the surrogate decisions may go before a court for a further review in an expedited court proceeding, called a “special proceeding.” The court will then review the issues to ensure all steps required under law have been taken and the decisions are factually based.

If No Surrogate Can Be Found

For patients with no surrogate, the Family Health Care Decisions Act requires the medical facility to make health care decisions under the same guidelines as required for surrogates. The law forbids making medical decisions based on financial considerations.

Private Hospitals May Be “Conscience Objectors”

The Family Health Decisions Act allows a private hospital to have “conscience objections” and refuse to act on a surrogate’s decision to withhold or withdraw life-sustaining treatment if it is a contradiction to religious beliefs or moral convictions which are central to the facility’s operations. However, a facility choosing not to honor the decision must promptly transfer the patient to another hospital or nursing home where the surrogate decision will be carried out.

A hospital employee with “conscience objections” may refuses to take part in a surrogate decision to withhold or withdraw care and the medical facility must promptly replace the objecting employee with another individual willing to honor the decision.

A Health Care Proxy Is Still The Best Way To Protect Your Rights

Despite the new law, all New Yorkers should sign a health care proxy which includes their wishes on end of life treatment such as artificial hydration and nutrition. While the Family Health Care Decisions Act is a valuable fallback for loved ones of a patient who has failed to plan, only with a properly executed health care proxy will make your choice of surrogates and your wishes be known.

See also:

  1. Health Care Decision Making For Incapacitated People Who Have Not Signed A Health Care Proxy
  2. New York’s Family Health Care Decisions Act
  3. Frequently Asked Questions Concerning Living Wills and Health Care Proxies