Let me say right up front that the best thing you can do when it comes to medical decision-making is execute a Health Care Proxy appointing an agent. This agent can make your medical decisions if you are unable.
That being said, if you didn’t appoint anyone, in 2010 New York enacted the Family Health Care Decisions Act (FHCDA). The law provides a procedure for appointment of a surrogate to make healthcare decisions for you if you lack the capacity to make your own medical decisions. It even makes it possible for a family member or loved one to withdraw life support in an end-of-life situation. Otherwise, without an agent, the medical facility would have to keep you alive until the courts figure it out. Keep in mind that this end‑of‑life decision‑making process applies only in a hospital or nursing home setting. It does not apply in a home care setting.
Although I’ve had some agents think otherwise, the initial presumption is that you have the capacity to make your own decisions. This presumption is only overcome by an attending physician determining that you lack this capacity “to a reasonable degree of medical certainty.” That determination must even be agreed to by a concurring determination independently made by a health and social services practitioner.
With a health care proxy, an Agent is appointed. The Act allows a Surrogate to be appointed. The law sets up a priority system of who can be appointed as the surrogate in the absence of a guardian or healthcare proxy agent. The order of priority is as follows:
- a spouse or domestic partner
- an adult child
- a parent
- a sibling
- a close friend
One of the biggest difficulties is that the Act does not and cannot (for obvious reasons) determine which child, parent, sibling or friend. Should it be the child with the medical education, the oldest, or the one with the biggest mouth? With a health care proxy, only one agent is appointed at a time with a pecking order of successor agents; you get to pick the agents and the order.
The law also establishes the decision‑making standard. The surrogate must make the decision, including removal of life‑sustaining treatment, based on the “best interest of the patient” standard. This is often difficult since you probably never spoke to the Surrogate about any of your healthcare preferences. In considering what the best interests of the patient are, the law also requires the Surrogate to consider the patient’s religious and moral beliefs. That may be helpful, or it may have the Surrogate move in a direction that is not necessarily where you wanted to go.
As I said at the beginning, rather than relying on the FHCDA to try to carry out your wishes, it is much better to appoint an agent under a Health Care Proxy. That way, you can have discussions about your healthcare preferences, including end‑of‑life decisions, ahead of time. But FHCDA can help families and individuals in serious medical situations where a healthcare proxy is not in place.