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Elder Planning Isn't Just For The Elderly

A new chapter in health care decision making

The recent passage of the Family Health Care Decision Act ("FHCDA") with the enactment of New York Public Health Law Article 29-CC (effective June 1, 2010) is the culmination of a legislative journey that started in 1993.

In certain specified circumstances, the FHCDA makes unnecessary the existence of a health care proxy and the resulting appointment of a health care agent. Instead, it establishes procedures and protocols for determining whether an adult patient in a nursing home or general hospital has the capacity to make health care decisions. If a determination is made by health care practitioners that an adult patient does not have the requisite capacity, then a surrogate will be appointed to make health care decisions from a list of individuals ranked in order of priority from family members to friends. As part of FHCDA, Article 29-CCC was enacted, which makes technical amendments to the existing laws regarding "do-not-resuscitate orders."

The FHCDA does not apply to adult patients that have executed a health care proxy or whom have a court appointed guardian of the person under Article 17-A of the Surrogate's Court Procedure Act or Article 81 of the Mental Hygiene Law. With respect to whether the adult patient has the capacity to make decisions regarding his or her medical treatment, Section 2994-C of the Public Health Law creates a presumption that every adult has the capacity to determine treatment unless the attending physician has determined otherwise, or there is a court order to that effect. If the patient is in a residential health care facility (nursing home), at least one other social service or health practitioner from said facility must concur with the attending physician. If the patient is in a hospital and the surrogate decision maker has decided against life sustaining treatment, similar concurrence from at least one social service or health care practitioner must be obtained. Additionally, hospitals are required to establish written policies for the training and credentials of the health care professional that will provide the concurring opinion.

In the event the patient has a developmental disability or mental illness, the concurring opinion must be provided by a health care professional with expertise or training relevant to patients with mental illnesses or developmental disabilities. Additionally, the FHCDA requires that if the patient with a mental illness or developmental disability has been determined to have the capacity to understand the information and objects to the determination of incapacity, the patient's objection will prevail unless the court determines otherwise. The attending physician for the developmentally disabled or mentally ill patient must confirm the finding of incapacity before complying with the health care decision.

The most important and novel aspect of the FHCDA surrounds the creation of a prioritized list of surrogate decision makers for the adult patient who lacks the capacity to make health care decisions and has not executed a health care proxy. In order of priority, they are a court-appointed guardian, the spouse, domestic partner, child over the age of 18, parent(s), sibling(s) or a close friend who is familiar with the patient's personal, religious and moral views regarding health care (Public Health Law 2994). The surrogate is authorized to make all health care decisions that the patient could make if he or she had the requisite capacity to do so. In making health care decisions, the surrogate is provided with access to all health care providers and the medical records needed to make decisions.

In the cases where the patient has no available family or friends, Section 2994-C of the Public Health Law allows the attending physician to make routine medical decisions. However, as to major medical decisions, the attending physician is required to consult with the hospital staff involved in the patient's care and the physician selected by the hospital must agree with the attending physician. In the event the attending physician needs to make a decision about withholding or withdrawing life-sustaining treatment, one of two requirements must be satisfied. There must be review and approval by a court that the decision of the physician satisfies the standards for surrogates relevant to withdrawing or withholding life-sustaining treatment. The second requirement is if the attending physician determines no benefit will be derived from the life-sustaining treatment because the patient will die immediately and the life sustaining-treatment violates acceptable medical standards and one other physician concurs. In that event, without a court order, the life-sustaining treatment may be withdrawn or withheld.

Frankly, I don't envy the physician(s) and court that is placed in the position of interpreting this provision of the act and is placed in this decision-making position.

While there has been some speculation that the FHCDA obviates the need for a health care proxy, in my opinion, it best illustrates why a health care proxy should be executed. Simply stated, why would anyone place themselves in the position of a third party they did not select making health care decisions for them, when they could have executed a simple document selecting an agent and could articulate their health care wishes. However, I do believe the FHCDA will play a valuable role in helping to obviate the need for a court-appointed guardian in those instances where family members are available to act as surrogates.

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