Seventeen years after the first bill of its kind was introduced in the New York State Legislature, Governor Paterson has signed a bill that will allow a surrogate decision maker, such as a family member or friend, to make health care decisions on behalf of incapacitated patients. The act becomes effective June 1, 2010. This alert discusses the implications of the bill.
The FHCDA establishes a priority order for the selection of a surrogate decision maker from a list of individuals including a legal guardian, spouse, or domestic partner, adult son or daughter, parent, adult sibling, and close friend. The surrogate decision maker has the authority to make any and all health care decisions on the patient’s behalf that a competent patient would have been able to make for him or herself, including the decision to withhold or withdraw life sustaining treatment. The FHCDA applies only after a health care practitioner has determined, in accordance with the procedure established in the legislation, that the patient lacks decision making capacity.
Historically, New York has been one of only two states that does not permit a family member to make decisions regarding life sustaining treatment on behalf of an incapacitated individual. In the absence of the FHCDA, New York law provides that such decisions cannot be made unless clear and convincing evidence of the patient’s wishes exists. Advance directives, such as a living will or a health care proxy, are considered to be clear and convincing evidence of a patient’s medical wishes, but people often fail to prepare these documents while they have the capacity to do so.
It is important to note that the FHCDA does not apply to patients who have developmental disabilities or who reside in mental hygiene facilities, as there are other applicable laws that govern health care decision making in these contexts.
Governor Paterson has stated that the bill is a “monumental achievement that should be celebrated by all New Yorkers, as it will help patients receive needed medical care more quickly and avoid undue suffering for patients and their loved ones.”