After a 17-year battle, New York State finally has a law that provides a procedure whereby individuals can be named as surrogates with the authority to make health care decisions for incapacitated patients who have not signed a health care proxy. Considering the fact that only about 20 percent of the adult population have health care proxies, the need for such a mechanism is clear and the potential impact of the new law is significant.

Patient advocates were very pleased on March 16, when Gov. David Paterson signed the Family Health Care Decisions Act. The act became effective on June 1. With the enactment of this new law, New York is now among the majority of states that offer family members, including domestic partners, a procedure for having a surrogate named to act on a loved one’s behalf.

Until the act, not even a spouse could make health care decisions for another person absent a properly drafted and executed health care proxy. According to supports of the act, patients who lacked capacity were often subjected to medical procedures and treatments that the patients’ loved ones believed were contrary to the patients’ wishes. To make matters worse, the costs associated with the unwanted treatments were ultimately the responsibility of the patient or his family.

Under the act, priority for designation as a surrogate is given to court-appointed guardians, followed by individuals that may have been designated by the patient orally before losing capacity. Next in line to act as surrogate for an incapacitated patient who has not signed a health care proxy are spouses, and domestic partners. Adult children, parents and adult siblings are also named in the act as possible surrogates for incapacitated patients.

Unfortunately, the act does not allow for someone further down the list of possible surrogates to be designated as the decision maker if someone with greater priority is available to act. The act also does not address who should be named as surrogate where there are multiple people at the same level of priority with differing opinions. Hopefully these issues will be addressed by the legislature in the near future.

If the patient is in a hospital, the attending physician must make a determination that the patient lacks decision-making capacity before a surrogate is designated. In a nursing home setting, the determination of incapacity must be confirmed by an independent health or social services practitioner. Once a surrogate has been chosen, he or she has the authority to make medical decisions concerning all types of treatments and procedures.

Decisions are to be made based upon the patient’s wishes if they are known. If not, the surrogate is required to act in the best interest of the patient. However, if the surrogate wishes to withhold or withdraw life-sustaining treatment, the act sets forth additional standards that must be met. Under those circumstances, whether a patient’s condition is irreversible, how long the patient may survive both with and without treatment and the burden the treatment will place on the patient are all factors that must be considered.

While the act will certainly relieve some of the stress on families, it is important to note that the safest way to ensure that your wishes are honored is to have a health care proxy and living will prepared while you are competent to do so.

This article first appeared in the August 12, 2010 issue of the Times Beacon Record Newspapers.

 
Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.