In 2010 Governor Patterson signed the Family Health Care Decisions Act (FHCDA) into law. The purpose of the FHCDA was to allow the family members of an incapacitated adult person to make medical decisions for that incapacitated person, even without the presence of a completed health care proxy or living will. Before the FHCDA, New York only allowed an agent or surrogate to make a health care or end of life decision for an incapacitated person if that person had previously used a health care proxy to appoint the agent. This is a very valuable law that has helped a large number of temporally incapacitated people without an estate plan. There is one drawback to the law however. It has given some people a false sense of security, which has delayed them in creating their own estate plan or set of advanced directives.
Why You Still Need Advanced Directives
The FHCDA is analogous to the intestacy laws for wills. It creates a list of defaults in case you do not create your own documents. Similarly to intestacy, if you do not have the general beliefs and relationships that the law assumes, you end up with a result you would not have chosen. The FHCDA also is very conservative with end of life care. Often a number of doctors must consent with the decisions of the surrogate before those decisions can be carried out. Also, the health care surrogate is obligated to make decisions based on “clear and convincing evidence” of the patient’s wishes. As a result, if you have personal, religious or moral beliefs that require specific medical decisions, those medical decisions are unlikely to occur. That is a reason why a living will or health care proxy is required. In those documents, you can list your beliefs and wishes. Even if the proxy you chose is unavailable and the FHCDA hierarchy applies, there is still “clear and convincing evidence” of your wishes in these documents. The other situation where having advanced directives is valuable is if you do not get along with your family, or your family has trouble agreeing on things. By choosing your own surrogate, you can avoid a situation where your family is fighting over what to do when you are incapacitated.
The FHCDA establishes procedures allowing family members, or other persons close to a patient to decide treatments and consult with health care professionals. The FHCDA only applies to care provided in hospital and nursing homes. Another restriction is that for the FHCDA to apply, the person must lack capacity- if an adult patient has capacity, they can make their own decisions. Also, if the patient has a health care proxy, that will apply. Similarly, if there is an appointed guardian, guardianship law governs any decision making for the patient.
The procedure of the FHCDA is as follows:
The attending physician makes a determination on competence.
In a residential health care facility, physician and at least one other practitioner must concur.
Hospitals are required to adopt written policies that identify the training and credentials of professionals qualified to provide the concurring opinion.
The person who will act as a surrogate for the incapacitated person is chosen based on the following order of priority: (in order of priority)
A court-appointed guardian
Spouse or domestic partner
Child older than 18
Close adult friend or relative familiar with the patient’s personal, religious and moral views regarding health care.
In a general hospital, the attending physician and at least one other practitioner must concur before a surrogate decision to forgo life-sustaining treatment is followed.
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