David R. Schoenhaar, Esq Ruskin Moscou Faltischek
On March 16, 2010, Governor Paterson signed into law the Family Health Care Decisions Act (FHCDA). See Chapter 8 of the Laws of 2010. This new law provides procedures for family members and others close to an incapacitated person to make health care decisions, including life sustaining treatment, in the absence of an advance directive. Surprisingly, prior to the FHCDA, New York was one of the few states that had no statute setting forth an order of priority for selecting a surrogate to make medical decisions for an incapacitated person (other than those with developmental disabilities or who reside in mental health facilities). This resulted in critical medical decisions being made by those other than the patient's family.
If no health care proxy exists today, the FHCDA sets forth a hierarchy that determines the surrogate for an adult patient. The order is as follows:
(1) guardian who is authorized to make health care decisions pursuant to Article 81 of Mental Hygiene Law,
(2) the spouse, if not legally separated, or the domestic partner,
(3) a child 18 years or older,
(4) a parent,
(5) a sibling 18 years or older, and
(6) a close friend.
Notably, the law recognizes a domestic partner and includes such person in the same class as the spouse.
While this new law certainly fills a gap with respect to identifying a surrogate to make health care decisions, it is strongly suggested that advanced directives, such as a living will and health care proxy, still be prepared. An advanced directive is still the safest way to ensure that your wishes are fulfilled in the event that you can no longer make these important medical decisions for yourself.
David R. Schoenhaar is an associate at Ruskin Moscou Faltischek where he is a member of the firm's Trust & Estates Department.