David Shaffer, Esq.
Many families have faced the following difficult scenario in recent years: your loved one (for purposes of illustration, let's say your mother) has been stricken with a terminal illness for which she has been in the hospital for over two months. Multiple doctors have determined that there is no reasonable hope of recovery. Your mother has three months to live, and in the meantime, she is enduring a great deal of pain and suffering as a result of her medical treatment. Unfortunately, your mother has lost the ability to make medical decisions for herself, and she cannot communicate any of her thoughts or wishes to you or to any doctors or staff at the hospital.
In the past, your mother has indicated on several occasions at holiday dinners with the family that if she were ever in such a situation, she would not want to be kept on life-sustaining treatment indefinitely when there was no hope of recovery. Despite these discussions, your mother had never signed any formal paperwork, commonly known as a Living Will and Health Care Proxy. This document is meant to clearly state a person's intent under such circumstances and appoint a Health Care Agent to communicate the person's wishes to the doctors. When your mother entered the hospital, the medical staff had asked if she had this particular document in writing, but at that point she was no longer competent to sign any documents.
This scenario plays out regularly in hospitals and nursing homes throughout New York State. One estimate suggested that approximately 75,000 individuals die in New York hospitals each year without a Living Will and Health Care Proxy, lacking the ability to make their own health care decisions. It has also been estimated that only about 20% of individuals in New York have a Living Will and Health Care Proxy in place.
Until recently, family members often had no authority to step in and act on behalf of their loved one to consent or object to medical treatment, including the withholding or withdrawal of life-sustaining treatment. As described above, if your mother was being kept alive with life-sustaining treatment that you knew she would not wish to have, you would have no recourse unless you could show by clear and convincing evidence that she would have declined treatment if she was competent. This high standard often left family members in a difficult position.
On March 16, 2010, New York Governor David Paterson signed the Family Health Care Decisions Act ("FHCDA") into law. This law allows family members, guardians or domestic partners to make health care decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients at general hospitals and residential health care facilities who lose their ability to make such decisions and have not prepared written directives in advance. This law provides a list of individuals, ranked in order of priority, who are able to step in and act as a "surrogate" for their loved one: court-appointed guardian; individual designated orally by subsequently incapacitated person; spouse or domestic partner; adult child; parent; adult sibling; close relative or friend. Therefore, in the situation described above, where your mother has no court-appointed guardian, named Agent, or spouse, you as her adult son or daughter would be able to step in and make health care decisions for her.
The FHCDA provides various safeguards to prevent inappropriate decisions by a surrogate. It allows any family member or close friend of the patient to challenge the selection of a particular person as a surrogate and/or challenge a particular decision made by a surrogate if they believe that the surrogate is not acting in accordance with the patient’s wishes or best interests.
If you are faced with the unfortunate situation described above, you will no longer face tremendous obstacles to carrying out your loved one’s wishes. Hospitals and residential health care facilities will be implementing procedures in the coming months to be in compliance with the FHCDA which officially goes into effect on June 1, 2010. These processes will empower families and protect patients from ongoing suffering. The FHCDA is a welcome addition to New York’s Public Health Law which provides families with peace-of-mind during extremely trying and difficult circumstances. For individuals who have the requisite capacity, the best approach remains contacting your Woods Oviatt Gilman attorney regarding executing a Living Will and Health Care Proxy.
For more information call (585) 987-2800 or visit www.woodsoviatt.com.