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The Family Health Care Decisions Act, signed into law by Governor Paterson in March of 2010, establishes the right of family members and others close to an incapacitated patient to make health care decisions on that patient’s behalf when he or she is no longer able to do so.

Prior to the enactment of this Act, no one, not even a spouse or a child, could speak on behalf of an incapacitated person if he or she had not signed a health care proxy or left clear and convincing evidence regarding his or her health care wishes before becoming incapacitated. This led to situations where patients were denied the palliative care they would have wanted, or were subjected to invasive treatments they would have refused.

With the passing of this law, any incapacitated patient who has neglected to sign a Health Care Proxy will nevertheless benefit from having a surrogate make health care decisions on his or her behalf. Now, once a finding of incapacity has been determined by the patient’s physician, a surrogate must be informed. According to a priority list of individuals (in order of priority: court-ordered guardian; spouse or domestic partner; adult child; parent; adult sibling; and close friend), a surrogate will be chosen to make any and all health care decisions for the incapacitated patient, including withdrawing or withholding life-sustaining treatment, in accordance with procedures and safeguards established in the new law.

While this new law helps individuals and families during difficult times, the Act does not do away with the need for a Health Care Proxy or diminish the importance of engaging in meaningful conversations with your loved ones regarding your wishes. First, because this legislation is so new, we have yet to see how the law will be applied and implemented in a given situation. Second, your surrogate will be chosen based on who is highest on the promulgated priority list, and may not be the person who knows your wishes or the one you would have chosen to speak on your behalf. Also, if there are multiple people at the same level of priority with differing opinions, objections can be made to the surrogate’s decisions, which could lead to conflicts. This can all be avoided if you select an agent, and speak to your agent about your medical wishes.

By signing a Health Care Proxy when you are well, you can choose the person who you want to make medical decisions on your behalf should you become incapacitated. You can choose the person you believe will carry out your wishes, and you’ll avoid a potential familial dispute down the road.

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