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Nassau County Bar Association

New York State Family Health Care Decisions Act

The New York State Family Health Care Decisions Act may impact unsuspecting clients of attorneys and accountants. It is the result of a history of conflicts between hospitals and families of patients without an executed health care proxy. It applies to health care provided in a public hospital to a patient lacking health care decision-making capacity.1 Under certain conditions, a private hospital and individual health care providers are not required to follow this statute.
 
Prior to relying upon a surrogate, health care providers makes reasonable efforts to determine whether a health care agent has been appointed.2 If they cannot locate a health care agent, they will rely upon the surrogate.3 The surrogate is selected to make health care decisions on behalf of a patient. They notify the physician of their decision orally or in writing.4 If it is later determined the decision-making is regained by the patient, then the authority of the surrogate ends immediately.5
 
Generally, every adult is presumed to have decision-making capacity.6 An initial determination is made by the physician to a reasonable degree of medical certainty.7 This includes an assessment of the cause and extent of the patient’s incapacity, and the likelihood they will regain capacity.8 The initial determination sometimes is subject to a concurring determination.9 Next, notice is given to the patient; to a person on the surrogate list highest in priority; and if transferred from a mental hygiene facility, to that director of the facility.10 Generally, unless a court determined the patient lacks capacity, if the patient objects to the determination of incapacity, or choice of a surrogate or to health care decision made by the surrogate, the patient’s objection or decision prevail.11 Pursuant to the New York State Family Health Care Decisions Act, the surrogate chosen to act on behalf of the patient is selected from a list. The first available person listed highest in priority is named surrogate. This statutory list is the following: 1) guardian under Article 81 of NYS Mental Hygiene Law; 2) spouse, if not legally separated, or domestic partner; 3) son or daughter, age 18 or older; 4) parent; 5) brother/sister, age 18 or older; or 6) close friend.12 A close friend is “any person, age 18 or older, is a close friend or a relative of the patient (other than spouse, adult child, parent, brother/sister), who maintained regular contact with patient and is familiar with patient’s activities, health, religious or moral beliefs, and presents such a signed statement.”13 If the general hospital physician does not agree with the surrogate’s decision, there are additional confidential procedures employed.14 If the matter escalates, the courts intervene.15
 
With a minor patient, the parent acts as surrogate, subject to limitations.16 When the physician believes the minor patient has a parent or guardian not informed of a decision to withhold life-sustaining decisions, the physician should make reasonable efforts to determine if that parent/guardian has maintained “substantial and continuous contact” with the minor, and if yes, make diligent efforts to notify that parent/guardian before following those instructions.17
 
When an adult patient does not have a surrogate, and lacks capacity, where possible, the hospital looks to the medical record to ascertain the patient’s wishes.18 The physician makes decisions for the patient for routine medical treatment, and major medical treatment under certain circumstances.19
 
Decisions concerning withdrawal of life-sustaining treatment are made by the physician with concurrence of an independent physician in a reasonable degree of certainty that no medical benefit would be gained by the patient because they face imminent death, or not providing such treatment would violate medical standards.20
 
This new legislation should relieve a majority of the conflicts. It’s important to keep current on these changes so we, as attorneys and CPAs, can advise our clients knowledgeably.
 
Stephanie M. Reilly Keating, Esq., CPA of Schwartz & Fang, P.C., with offices in Lake Success and New York.
 
1. P.H.L. § 2994-n(2).
2. Chapter 45 of the New York Consolidated Laws – Public Health Law, Article 29-CC Family Heath Care Decision Act, § 2994-b(2).
3. P.H.L. § 2994-b(2).
4. P.H.L. § 2994-d(5(e).
5. P.H.L. §2994-d(3)(b).
6. P.H.L. § 2994-c(1).
7. P.H.L. § 2994-c(2).
8. P.H.L. § 2994-c(2).
9. P.H.L. § 2994-c(3).
10. P.H.L. § 2994-c(4).
11. P.H.L. § 2994-c(6).
12. P.H.L. § 2994-d(1).
13. P.H.L. § 2994-a(4).
14. P.H.L. § 2994-d(5)(c).
15. P.H.L. § 2994-r.
16. P.H.L. § 2994-e(1).
17. P.H.L. § 2994-e(3).
18. P.H.L. § 2994-g(1).
19. P.H.L. § 2994-g(4).
20. P.H.L. § 2994-g(5).