We have the right to accept or refuse medical treatment for ourselves if we have capacity to make health care decisions. “ ‘Capacity to make health care decisions’ means the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.” (Public Health Law, § 2980 (3).) However, if we cannot make medical decisions for ourselves, we will need someone to make medical decisions on our behalf. This article will address those situations.
This article is a discussion of New York law. The law in other states may be different. Furthermore, this article is not legal advice and if you have specific questions, you should contact an attorney or health care professional who can assist you. The area of health care decision making is very complex, and this article is only a summary of some of the legal aspects of health care decision making in New York State.
Family Health Care Decisions Act
Until 2010, New York did not allow anyone, except for someone appointed as a health care agent, to make health care decisions for an individual who could not make such decisions for herself. The Family Health Care Decisions Act allows a surrogate to act on behalf of patients in hospitals or nursing homes. In general terms, the following people, in order of priority, have the right to make health care decisions on behalf of an adult lacking capacity to make decisions for herself:
(a) A guardian authorized to decide about health care pursuant to article eighty-one of the mental hygiene law;
(b) The spouse, if not legally separated from the patient, or the domestic partner;
(c) A son or daughter eighteen years of age or older;
(d) A parent;
(e) A brother or sister eighteen years of age or older;
(f) A close friend.
The healthcare decision must be made in accordance with the person’s wishes or if such wishes cannot be reasonably determined, in accordance with the person’s best interests.
Health Care Proxies
Even though the law allows a surrogate to make decisions on behalf of an incapacitated individual, one should still appoint a health care agent. A health care proxy allows you to appoint a health care agent and an alternate health care agent to make medical decisions on your behalf. Relying on the appointment of a surrogate through the Family Health Care Decisions Act may result in a person being appointed as your surrogate that you would not choose for yourself. Furthermore, in some cases problems could arise from having two or more persons who are entitled to act as your surrogate. For instance, if you have more than one child and no one else has priority to act as your surrogate, they would all be qualified to make health care decisions on your behalf. If they cannot agree on who should be the surrogate, there could be a nasty court battle – good for lawyers; not so good for you.
The health care agent must make decisions in accordance with your wishes, if known, or if not known, if they can be reasonably determined. If your wishes are not known and cannot reasonably be determined, your agent must make medical decisions in accordance with your best interests. There are two exceptions: hydration and nutrition. Your agent must know your wishes concerning these issues in order to have authority with respect to same.
Many health care professionals are skeptical about living wills and it is my understanding that they are routinely ignored, at least in New York. However, I still recommend that my clients execute them for two reasons: 1) if a court battle ensues, the living will is evidence of one’s health care desires; and 2) it is a good idea to review the living will with their families so that everyone understands what their wishes are. On more than one occasion, I have had a child tell me that the living will gave them the comfort of knowing that they did what their parent would have wanted. Making medical decisions for someone else brings up a lot of emotions and being able to say “I followed mom’s wishes” is very important in assisting the decision-maker in reconciling her feelings with her decision. This is especially important when a decision is made to not commence or continue life-sustaining medical treatment.
Do Not Resuscitate Orders
A full discussion of Do Not Resuscitate Orders is beyond the scope of this article. However, in general, Do Not Resuscitate Orders are issued by a physician. Do Not Resuscitate Orders only pertain to cardiopulmonary resuscitation when an individual is in cardiac or respiratory arrest. It does not control any other medical intervention. The patient, his health care agent or a health care surrogate may consent to a Do Not Resuscitate Order. These orders can be very helpful when resuscitation would merely result in needless pain and suffering.
MOLST (Medical Orders for Life-Sustaining Treatment)
The MOLST form is filled out by a health care provider. The purpose of the form is to “discuss and convey a patient’s wishes regarding cardiopulmonary resuscitation (CPR) and other life-sustaining treatment”
“MOLST is intended for patients with serious health conditions who:
- Want to avoid or receive any or all life-sustaining treatment;
- Reside in a long-term care facility or require long-term care services; and/or
- Might die within the next year.”
The MOLST can be a valuable tool to assist the patient or her health care agent or surrogate understand and determine what treatment is desired or not for the patient.
It is my belief that control of your health care decisions starts with a health care proxy. With a health care proxy, you can make medical decisions for yourself, if you are able, but if you are not able, you have someone you trust to act on your behalf. I strongly suggest that you speak to your agent(s) about your health care, using a well-drafted living will as your guide. This will give the agent the best ability to make the decisions you would make for yourself and will help alleviate some of the anxiety and guilt about whether the agent is making the “right” decision in accordance with your wishes.