What If I Don’t Have a Health Care Proxy?

| Apr 9, 2020 | Firm News

If you’re like most people, you’ve been thinking a lot lately about medical emergencies, about what would happen if you were suddenly hospitalized. There is no way to prepare emotionally for something like that, but there is a way to prepare legally: designate a Health Care Proxy to make medical decisions for you in case you can’t.

What if you don’t have a Health Care Proxy? What happens if a patient can’t make these decisions but hasn’t planned for someone else to ?

New York State has thought of that. The 2010 Family Health Care Decisions Act lays out the procedure by which surrogates can make medical decisions for patients who have not designated a Health Care Proxy.

Let’s go through it step by step.

The law applies to patients over 18 who are “incapacitated” — unable to make medical decisions. The patient’s physician has to determine that the patient is incapacitated, and another physician has to agree.

Once that determination is made, the hospital can designate a surrogate decision-maker. The law lists potential surrogates in order of priority: highest on the list is asked first. For most people, that means spouse or domestic partner. (For an adult previously determined to be incapacitated, first would be the official court-appointed guardian.) Then a child over 18, then a parent, then a sibling over 18, then a close friend or relative. (If none of these is available, a physician can act as surrogate.)

The selected person can refuse the responsibility, in which case the hospital continues down the list to the next eligible person, or the selected person can designate any other person on the list to act as surrogate.

But let’s say the person accepts. Then the hospital gives the surrogate access to any medical information necessary to consider the patient’s treatment options and make decisions.

There are some constraints on those decisions. The surrogate has to act according to the patient’s religious or moral beliefs or, if those aren’t known, then according to the patient’s “best interests.” What constitutes “best interests”? The law suggests considering “the dignity and uniqueness of every person; the possibility of preserving the patient’s life and preserving or improving the patient’s health; relief of the patient’s suffering; and any other concerns and values a person in the patient’s circumstances would wish to consider.”

If it comes down to withholding or withdrawing life-sustaining treatment, there are even more rules. First, the treatment has to be considered (officially by two physicians) to be an extraordinary burden to the patient. Given that, the patient has to be expected to die within six months (with or without treatment) or be permanently unconscious or the treatment would require inhumane levels of pain and suffering and the patient’s condition is incurable anyway.

Imagine being in the position of having to make these choices! Imagine having to trust someone else to choose for you!

Having a designated Health Care Proxy wouldn’t make such a terrible situation OK. But it would ensure that you–and not New York State–got to decide who made those decisions for you. It would save time, and reduce confusion and anguish for those who are taking care of you.

So while you’re stocking up on toilet paper and non-perishable foods, consider designating a Health Care Proxy as another way to prepare for the worst. An attorney can easily, quickly, and affordably walk you through the process. And while you’re at it, you can make sure your estate planning is up to date as well.

Call us at (518) 631-3390 or email Attorneys Crystal R. Peck at [email protected] or Ryan P. Bailey at [email protected] and we’ll help. Chances are, you won’t need it. But at least you can take comfort in being a little more prepared for what might happen next.