New Law Permits Health Decisions by Appointed Surrogate

On March 16, 2010, the Family Health Care Decisions Act became law in New York State.  The Act provides for the appointment of a surrogate if a patient lacks capacity to make health care decisions and has not appointed a health care agent.

Prior to the passage of this legislation, family members of patients in hospitals or nursing homes in New York State could not make health care decisions on behalf of loved ones who had no Living Will or Health Care Proxy in place but were incapable of making such decisions on their own.  With regard to life sustaining treatment, the law required “clear and convincing evidence” that the patient would have declined life sustaining treatment if he had capacity to do so.

Now, with the passage of the Family Health Care Decisions Act (“FHCDA”), production of such evidence is not required.  The FHCDA permits the surrogate to make health care decisions on behalf of the incapacitated patient, including decisions regarding the withholding or withdrawal of life sustaining treatment, such as the provision of nutrition and hydration by IV, naso and gastric tubes.  The FHCDA does not apply to decisions regarding the oral provision of food and water.  The FHCDA, therefore, allows for a patient’s end-of-life wishes to be granted without a Living Will or Health Care Proxy in place.

The surrogate is selected from a list of individuals provided for in the statute.  This list is in order of priority and includes the following individuals: a court-appointed guardian, pursuant to Article 81 of the Mental Hygiene Law; a spouse or domestic partner, as defined in the FHCDA; a son or daughter age eighteen or older; a parent; a sibling age eighteen or older; or a close friend age eighteen or older, who has maintained regular contact with the patient.

The surrogate’s authority to make all health care decisions on the patient’s behalf begins when it is determined that the patient lacks capacity to make such decisions on his own.  The attending physician’s initial determination of a patient’s capacity is subject to an independent concurring determination by a health or social services practitioner.  These decisions should be made in accordance with the patient’s religious and moral beliefs, if known to the surrogate, or in accordance with the patient’s best interests if those beliefs cannot be ascertained.  Strict standards have been put in place for decisions to withdraw or withhold life sustaining treatment.  Any decisions to withhold or withdraw life sustaining treatment must be expressed orally or in writing to the attending physician.

If a patient does not have an agent or guardian, and the hospital cannot identify a surrogate, the hospital must, to the extent possible, identify the patient’s wishes regarding the pending health care decision.  The standards which the hospital must follow depend upon whether the decision involves routine medical treatment, major medical treatment, or life sustaining treatment.

If the patient is a minor, the parent or guardian has the authority to make any decisions regarding life sustaining treatment in accordance with the minor’s best interests.

The FHCDA also  protects hospitals and nursing homes that honor decisions made by surrogates and in accordance with the FHCDA.

It is important to note that if a guardian has been appointed under Article 17-A of the Surrogate’s Court Procedure Act (“SCPA”), the FHCDA does not apply and health care decisions for the patient will be governed by Section 1750-b of the SCPA.

Notwithstanding the enactment of the FHCDA, Littman Krooks believes that it is still very important for individuals to execute advance directives, including a Health Care Proxy and Living Will.  A Health Care Proxy permits an individual to appoint a particular health care agent and successor to make decisions in the event that the patient cannot make the decisions for himself.  The Living Will is a document in which the patient expresses his wishes regarding certain end-of-life decisions.  The FHCDA should not be considered a substitute for these important documents.

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