The New New York Family Health Care Decisions Act
In the State of New York one of the most important legal documents you should have during your lifetime is a Health Care Proxy, along with a Living Will. However, many people are not armed with these powerful documents for their vital critical care decisions. This is mostly because they either don’t get around to creating them, or worse, don’t know they even exist.
New York State’s answer to this problem is now found in the NYS Family Health Care Decisions Act (“FHCDA”). However, we firmly believe that the proactive approach of legally stating your wishes in your healthcare documents leave much less room for interpretation as to what your medical wishes might be if the time arises that you cant speak for yourself.
What is a Health Care Proxy?
A Health Care Proxy is a legal document in which you appoint a person, your agent, to act on your behalf regarding medical decisions at a time that you are incapable of making those decisions yourself. The Health Care Proxy gives you the power to choose a close and trusted person as your agent to make those decisions for you, and additionally you can limit and/or specifically decide decisions that the agent will make on your behalf. In short, a Health Care Proxy puts the person you select into your shoes, but only when you are unable to make decisions on your own. It also requires hospitals, nursing homes and doctors to inform and honor the decisions of the person you select, as if they were you.
Why is it important to have a Health Care Proxy?
Most people don’t begin to think about the Health Care Proxy and other estate planning documents until they become ill or come close to retirement. The fact is every person over age 18, should have a health care proxy, young or old, regardless of age and health condition. A Health Care Proxy will ensure (via your chosen agent) that your doctor or health care provider treats you as you would want to be treated regardless of your inability to make those decisions. It is one of the few ways you are able to control what type of medical treatments you receive or don’t receive in this type of situation. It also prevents the possibility that the decision-making power will fall into the hands of someone you may not want as your agent. (See below What if you don’t have a Health Care Proxy)
There are two instances where your Health Care Proxy is essential. First, is when you have the temporary inability to make health care decisions, for example you under general anesthesia and an unexpected medical decision needs to be made. Second, is when you have permanent inability to make health care decisions, for example if you are comatose, in a vegetative state, or suffer from dementia or Alzheimer’s.
In addition to medical decisions your health care agent can make decisions about organ and tissue donation. However, the agent can not make decisions regarding artificial nutrition and hydration unless you specifically discuss your wishes regarding these matters with them and they are in writing via the Living Will legal document. It is important to note that the Health Care Proxy only gives your agent power to make health care decisions.
An additional legal document that can help protect the type of medical care you receive is a living will. A person will often execute a living will as well as a health care proxy. The difference between a living will and a health care proxy is that a living will is a document that provides specific instructions for specific circumstances, where as a health care proxy gives your agent the ability and flexibility to make decisions in accordance with your wishes that may not be mentioned in your living will, or previously discussed or contemplated. Any other, non-medical, decision-making on your behalf, such as the power of an agent to make financial decisions for you, should be discussed with your attorney.
What if you don’t have a Health Care Proxy?
If an individual does not have a Health Care Proxy then The Family Health Care Decisions Act (“FHCDA”) will govern who will act on his/her behalf when incapacitated. The FHCDA provides a prioritized list of persons who may act as the surrogate decision maker (or agent). The list is as follows: a Mental Hygiene Law Article 81 court-appointed guardian, the spouse (if not legally separated) or domestic partner, an adult child, a parent, an adult sibling, a close friend. If a person does not have a guardian, family or available friend then the health care decisions are made by the attending physician in accordance with the standards for such decision making set forth in the FHCDA. Decisions by the attending physician regarding major medical treatment or withdrawal/withholding of life sustaining treatment have added safeguards, which require additional procedural steps before any decision is made.
One of the requirements of the FHCDA is that any medical decision made by a surrogate must be in accordance with the known wishes and/or religious or moral beliefs of the individual. The surrogate has power to terminate or decline life-sustaining treatment in certain circumstances, including extremely burdensome treatment of terminally ill or permanently unconscious patients. The FHCDA also provides that life sustaining treatment can be terminated or refused under other circumstances with approval from an ethics committee or court. Any previous decisions made by the individual orally or in writing, for example in a living will, will supersede any decision made by a surrogate under the FHCDA.
This is precisely why it is important to discuss, clarify and state your wishes, thoughts and preferences regarding the treatments you may or may not want with your agent (and perhaps your health care provider as well). These conversations may include, but are not limited to, the impact of your moral or religious beliefs on the type of medical treatment you receive, specific situations and types of treatment you do or do not want to receive, and general feelings about different types of medical treatment. These discussions will enable your agent to better assess and determine how you would have made the decision.
