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health care proxy

What happens if you do not have a Health Care Proxy in New York?

A Health Care Proxy is a document that allows you to appoint an adult person to make a health care decision for you if you are unable to do so. This document also includes instructions as to organ donation. You cannot sign a Health Care Proxy if you lack the mental capacity to do so. What happens if you do not have a Health Care Proxy in place and can no longer sign one?

Family Health Care Decisions Act

The Family Health Care Decisions Act (FHCDA) was enacted in 2010 and allows family members or close friends to act as a “surrogate” or representative in making health care decisions for a patient lacking a Health Care Proxy. The Act is limited to a patient being physically present in a hospital or nursing home. Individual health care providers (i.e.- Primary Care Physicians) are not required to honor decisions made by Surrogate’s under this Act. The decisions may include end-of-life matters which extend to withholding or withdrawing of life-sustaining measures.

Surrogates include:

  • Spouse or domestic partner
  • A beneficiary covered under the person’s health insurance or employee benefits
  • A dependent
  • An adult child
  • A parent
  • A sibling
  • A close friend or relative presenting a signed statement acknowledging recent contact with the patient and familiarity with his or her health, religious, and moral beliefs.

Conflicts may occur if Surrogates within the same class disagree as to medical decisions, life-sustaining treatment, or their understanding of the patient’s, beliefs, moral or religious views.

Article 81 Mental Hygiene Law

A more drastic option beyond this Act is the commencement of an Article 81 Mental Hygiene Law Supreme Court proceeding for the appointment of a Guardian to make health care decisions for an incapacitated person. This process can be lengthy, invasive, and expensive and is often used as a last resort.

Although the Family Health Care Decisions Act is helpful in emergency situations and specific settings, it is not a substitute for a Health Care Proxy.  A Health Care Proxy is a simple, cost-effective way to assure that a person of your choice will make an informed medical decision in accordance with your wishes.

Diana Lattanzio

Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
516-683-1717 Ext. 2194

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