The Family Health Care Decisions Act (FHCDA) went into effect in New York State in 2010. The law provides the procedure for appointment of a surrogate to make healthcare decisions for an individual who lacks the capacity to make their own decisions and who does not already have a healthcare proxy or court-appointed guardian in place. It makes it possible for a family member or loved one to withdraw life support for somebody that is in a near-death situation. Otherwise, because the individual does not have an agent to do their wishes, the treatment would have to continue indefinitely. This end-of-life decision-making process only applies in a hospital or nursing home setting. It does not apply in a home care setting.
The initial presumption is that the patient has the capacity to make their own decisions. This presumption is only overcome by an attending physician’s determination that the patient lacks this capacity “to a reasonable degree of medical certainty,” and that determination has to be agreed to by a concurring determination independently made by a health and social services practitioner.
The law sets up a priority system of who can be appointed the surrogate in the absence of a guardian or healthcare proxy. The order of priority is as follows:
- a spouse or domestic partner
- an adult child
- a parent
- a sibling
- a close friend.
The law also establishes the decision-making standard. The surrogate must make the decision, including removal of life-sustaining treatment, based on the “best interest of the patient” standard. In considering what the best interests of the patient are, the law also requires the surrogate to consider the patient’s religious and moral beliefs.
Rather than relying on the FHCDA to try to carry out your wishes, it is better to have a discussion about end-of-life decisions ahead of time and appoint a person as a healthcare agent or proxy who already knows what your wishes are. But FHCDA is able to help families and individuals in serious medical situations where a healthcare proxy is not in place.
Robert W. Shaw, Esq.
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