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

** This article has been revised from its original version which was published on July 1, 2020.

A Health Care Proxy in New York is an estate planning or elder law document that allows you to appoint a trusted adult person to make medical decisions for you if you can’t. This document is also used to provide instructions to family and healthcare providers regarding specific treatments or organ donation. You can’t sign a Health Care Proxy if you’re no longer mentally capable. So what happens if you don’t have a New York Health Care Proxy in place and can no longer sign one? 

The 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 patients without a New York Health Care Proxy. But the Act is limited to a patient being physically present in a hospital or nursing home. Individual health care providers, such as primary care physicians or licensed medical professionals at hospitals and nursing homes, are not required to honor decisions made by surrogates under these circumstances. These critical decisions may include end-of-life matters which extend to withholding or withdrawing life-sustaining measures. 

Surrogates include: 

  • Spouse or domestic partner 
  • Beneficiaries covered under a person’s health insurance or employee benefits 
  • Dependents 
  • Adult children 
  • Parents 
  • Siblings 
  • Close friends or relatives presenting a signed statement acknowledging recent contact with the patient and familiarity with their health, religious, and moral beliefs. 

Conflicts may occur if surrogates within the same class disagree about 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 an Article 81 Mental Hygiene Law Supreme Court proceeding for guardianship for adults. The court-appointed guardian makes health care decisions for an incapacitated person. Seeking guardianship for adults can be a lengthy, invasive, and expensive court proceeding. It is often used as a last resort. 

Although the Family Health Care Decisions Act is helpful in emergencies and specific settings, it is not a substitute for a Health Care Proxy or Durable Powers of Attorney in NY. A Health Care Proxy is a simple, cost-effective way to ensure that a person of your choice will make an informed medical decision in your best interests and according to your wishes. 

If you want to prepare your family should you become severely ill or injured, an estate planning attorney in New York can help you create a Health Care Proxy. You may also want to learn more if you’re caring for an aging parent. Schedule a consultation to inquire about estate planning needs, including Health Care Proxy’s and Durable Powers of Attorney in NY. At Russo Law Group, P.C., our experienced attorneys can help you with all aspects of estate planning and elder law. 

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