What is the Family Health Care Decision Act?
September 23, 2010 | 04:19 AM
What is the Family Health Care Decision Act? Do I still need a healthcare proxy?
Answer: Yes, I would certainly advise that you execute a healthcare proxy. While this new law provides a default for those without a health care proxy it is still better to appoint the specific person that you want to make health care decisions for you were you unable to do so.
The new section that New York State has added to the Public Health Law lists in the order of priority those relatives who can make health care decisions when an individual is incapacitated and who has not previously executed a health care proxy nor has a Court appointed a guardian. This new section of law became effective June 1, 2010.
Up until now, New York State only allowed an agent or surrogate to make health care decisions for an incapacitated person if the incapacitated person had previously executed a health care proxy appointing the agent to make those decisions. It was a common misconception by many that family members had the authority to act as the health care decision maker because they were the next of kin. This was not true up until now.
If there is no appointed health care agent the attending physician is usually the one who will determine that the patient lacks decision making capacity, the cause and extent of the incapacity and the likelihood that the patient will or will not regain said decision making capacity.
Who may act as a surrogate based on this new section of law is listed here in the order of priority:
• A court-appointed guardian
• The spouse or domestic partner of an individual
• A child older than 18
• A parent
• A sibling
• A close friend or relative.
Obviously an adult with capacity can make his or her own health care decisions. For the new law to be in effect there first must be a determination that the individual patient lacks capacity. If that determination is made, then the surrogate, as listed under the new law, has authority to make all health care decisions for the patient that the patient could have made for himself or herself. This law also enables the surrogate to be provided with the necessary medical information and records needed to make an informed decision.
While this new act will dramatically change the health care decision-making process in New York for persons who lack capacity and have not previously executed a health care proxy, there are multiple reasons why it is better to have an executed health care proxy than to rely on New York State law to determine who should make health care decisions were you to become mentally incapacitated.
For one, the priority of individuals listed to act on your behalf as established under the Family While this new act will dramatically change the health care decision-making process in New York for persons who lack capacity and have not previously executed a health care proxy, there are multiple reasons why it is better to have an executed health care proxy than to rely on New York State law to determine who should make health care decisions were you to become mentally incapacitated.
Health Care Decision Act may be inconsistent with your wishes. Secondly, there may be multiple individuals (i.e., children) who have the same priority to make health care decisions for you under this act and they may not all agree on what that decision should be or their decisions may not be consistent with your wishes.
Additionally, the health care surrogate appointed under this act is more restricted than that of someone with a health care proxy. These are just a couple of reasons why it would be prudent for you to consult with an experienced estate planning and/or elder law attorney to further explore your estate planning needs.
Nancy Burner, Esq. has practiced elder law and estate planning for 15 years.