Family Health Care Decisions Act

       On March 16, 2010, Governor Patterson signed into law the Family Health Care Decisions Act. This new law, effective June 1, 2010, is intended to fill the void that exists when a person does not have a health care proxy. When the new law becomes effective, health care decisions may be made by specified relatives and friends on behalf of an incapacitated person who doesn't have a health care proxy.

       A person who is designated to make health care decisions under the new law is referred to as a "surrogate". Once designated, the surrogate will have the responsibility to make medical decisions for the patient ranging from routine medical treatment to withdrawing life support.

       Doctors will rely on a surrogate only if the patient has lost "the ability to understand and appreciate the nature and consequences of proposed health care, including the benefits and risks of and alternatives to proposed health care, and to reach an informed decision".

       If the patient does not have a health care proxy, and a surrogate is needed, hospitals and doctors will look to the following people to serve as a surrogate: 

1.    A Guardian authorized under Article 81 of the Mental Hygiene Law;
2.    A spouse or domestic partner, assuming you are not separated;
3.    A son or daughter 18 years of age or older;
4.    A parent;
5.    A brother or sister 18 years of age or older;
6.    A close friend.

       These potential surrogates are chosen in the order set out above. If a potential surrogate cannot be identified, then the decision making process falls to the doctor or hospital.

       The doctor does not require any consent for certain procedures, such as administering medicine or collecting fluid samples. For more complicated matters, such as when a general anesthetic will be used, the doctor must receive a concurring opinion from another physician. In certain circumstances, a physician, with the required concurring opinion, may elect to withdraw or withhold life sustaining treatment.

       This new procedure can be beneficial when a patient does not have a health care proxy. Nevertheless, we do not recommend being without a properly drawn health care proxy.  For example, despite having good intentions, a surrogate may not fully know or understand the patient's wishes. And, although the new law establishes an order of priority  for the designation of a surrogate, there does not appear to be a procedure to resolve a disagreement between two or more people with equal decision making rights. This could result in conflict amongst children or siblings.

       Given a choice, few people would choose to have a hospital make decisions regarding their care and treatment based solely upon information provided during the intake process or a medical emergency. Preparing a health care proxy in advance can ease this stress and allow your family peace of mind, knowing that you have chosen both the person to represent you, and the choices you want that person to make.

       A properly drawn health care proxy or other advanced care directive remains the preferred method for making certain that your wishes are known and carried out by a trusted individual.