Question: I have heard that there is a law in New York that makes a Health Care Proxy unnecessary, is this true?
Answer: No, in 2010 New York State adopted a provision under the Public Health Law entitled the Family Health Care Decision Act (FHCDA) which lists, in order of priority, those individuals who may make health care decisions when an person is incapacitated, has not previously executed a health care proxy, and has no Court appointed personal needs guardian. However, it is important to note that the provisions of this law will only apply when the individual needing care is in an institutional setting (i.e. hospital or nursing facility).
As with a health care proxy, this provision will only apply where a determination has been made that the person in need of care lacks the capacity to make Medical decisions for him or herself. The FHCDA lists classes of persons who may make health care decisions in priority order, specifically: a court-appointed guardian, the spouse or domestic partner of an individual, a adult child, a parent, an adult sibling, or a close friend or relative.
It is estimated that only 20% of New Yorker’s execute a Health Care Proxy. Prior to the enactment of this law in 2010, only those who executed a Health Care Proxy were in the position to have a surrogate act for them in the event that they were unable to make decision for themselves, including the right to make end of life decisions.
While the enactment of the FHCDA is a step in the right direction, it does not eradicate the need for individuals to execute advanced directives. The priority order must be followed and for some, that order is not necessarily consistent with their wishes. Another issue to consider is what will happen when more than one person is in the class of persons named, and they have differing opinions on what course of treatment should be followed. Finally, as previously mentioned, the FHCDA is only applicable in an institutional setting, relying on this provision rather than executing a valid Health Care Proxy creates a void as to who can make decisions for you should you be receiving care at home or in any other setting than those previously mentioned. This is especially problematic in cases where a dying patient wishes to remain at home with hospice care and no health care proxy is in place. In that situation, the FHCDA is of no help. The best advise that I can give is to take the time to execute a health care proxy and designate the person that you choose to make health care decisions in the event that you are unable to make those decisions for yourself.
By: Nancy Burner, Esq. and Robin Daleo, Esq.