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Pass the Family Health Care Decisions Act
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CURRENT NEW YORK STATE LAWS
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On July 3, 2007 Governor Spitzer signed into law A3583A The Surrogate Court Procedures Act that provides for the appointment of a person to make end of life decisions, for the mentally retarded only, when there is no court appointed guardian to do so.
Under current New York State Laws any other person who is unconscious must have expressed his/her wishes regarding life sustaining treatment prior to losing the capacity to do so. There must be a Health Care Proxy in effect before health care providers can take them off life sustaining treatment. Where there is no Health Care Proxy there must be "clear and convincing evidence" regarding that person’s wishes. This evidence can be in the form of a document that describes explicitly that persons desires and has been verified as signed by the person involved. If a person’s wishes were made orally they may be upheld in a court of law if they are found to be "clear and convincing" evidence. If a person never had the capacity to express themselves, such as that of a mentally retarded or mentally ill person, only a court appointed guardian may make decisions for them. Where an incompetent patient has made no prior statements and has not appointed a health care agent who knows of his wishes or does not have a court appointed guardian, a facility must maintain and treat that patient in accordance with accepted medical standards (except CPR if there is a valid DNR order in effect.)* PLEASE DON'T TAKE THE CHANCE THAT YOUR WISHES WILL BE MISUNDERSTOOD OR NOT BE FULLFILLED AND FILL OUT A HEALTH CARE PROXY FORM. INFORMATION AND A FORM CAN BE ACCESSED THROUGH THE SHARING YOUR WISHES WEBSITE. LINK TO
HEALTH CARE PROXY FORM
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Summary of proposed FAMILY HEALTH CARE DECISIONS ACT (FHCDA) (A06693 or S05522)
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This legislation permits family members and close friends to make health treatment decisions for people who no longer have decision-making capacity. This change is needed because current New York law permits surrogate health care decision making only in rare cases.
The FHCDA establishes procedures to choose a surrogate decision-maker and to guide health care decision-making. The FHCDA first requires hospitals to determine if a patient has completed an advance directive or health care proxy, or if a court has appointed an Article 81 guardian, or if the patient orally appointed a surrogate prior to losing capacity. If none of these situations is present, the FHCDA permits the appointment of a surrogate from among the patient’s close relatives or friends who has knowledge of the patient’s values and beliefs and will make decisions from a patient-centered perspective. The surrogate must make health care decisions based on the patient’s wishes. If the patient’s wishes are not known, or cannot reasonably be discovered, then the surrogate must act in accordance with the patient’s best interests. An assessment of the patient’s best interests includes: consideration of the patient’s dignity and uniqueness; possibility of preserving the patient’s life; the ability to preserve or restore the patient’s health and functioning; relief of the patient’s suffering; and, in the event that the patient is pregnancy, the impact of the treatment decisions of the fetus and the patient’s pregnancy.**
On June 12, 2006 the State Assembly passed their version of the Family Health Care Decisions Act. Their version also included a provision to appoint a surogate to make decisions for mentally ill or developmentally disabled persons. That would cover persons such as Raymond.
The legislative session for 2007 has ended. Neither house voted on the bill this session (A06993 or S05522) The bill must be introduced and be passed by both houses to take effect.
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*This information taken and edited from the Family Decisions Coalition website www.familydecisions.org site from the document Health Care Decision Making. This site nor the Family Decisions Coalition will not be held responsible for any misunderstanding of the NYS Laws brought about by perusing this site.
** This information from the New York Civil Liberties Union at www.nyclu.org
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