Health Care Proxies in New York State
Individuals have the right to make their own healthcare decisions. This includes an individual's right of self-determination and of informed consent before a medicine is administered or a medical procedure is performed.
It is advisable for all individuals, whether middle-aged or a senior citizen, to plan in case they are unable to make their own healthcare decisions. Having a healthcare proxy allows an individual to appoint a trusted family member or friend as their agent to make healthcare decisions for them if they are unable to make decisions for themselves. A healthcare proxy covers all medical decisions from routine to lifesaving. A doctor or healthcare institution is obligated to listen to that person or to transfer you to a different institution that will follow the instructions. Having a proxy is the best way to ensure that your wishes regarding end of life decisions are followed.
A healthcare proxy becomes effective after a doctor certifies in writing that the individual has lost his or her capacity to make their own decisions. It is also advisable for the healthcare proxy to state specifically that the agent may get access to the individual’s healthcare records, which are normally protected by the Health Insurance Portability and Accountability Act (HIPAA).
A Living Will
A living will also may be executed along with the healthcare proxy. In a living will, an individual signs a
statement giving a doctor specific medical instructions, most commonly regarding end of life decisions, such as advising a doctor to withhold certain specified treatment if the individual is in an incurable or irreversible medical condition. In a living will an individual does not appoint an agent to make healthcare decisions for them. This appointment is made only with a healthcare proxy. It is important to note that the specific instructions in the living will should not conflict with the specific written or oral instructions an individual gives to their health care proxy. If there is a conflict, this may create confusion about which path to follow, although the living will should state that the healthcare controls if there is a conflict.
In 2010, New York State passed the Family Healthcare Decisions Act. This was an important step for patient's rights and medical decision making. If an individual does not have a healthcare proxy, and the individual lacks the capacity to make their own healthcare decisions, the new law authorizes a surrogate -- an Article 81 guardian, a spouse, domestic partner, adult child, or another relative -- to make most healthcare decisions for the individual in a hospital or a nursing home. While this change is a positive step, it is still advisable for an individual to have a healthcare proxy. For more information on the Family Healthcare Decisions Act, please see my essay: New York’s Family Health Care Decisions Act: The important 2010 law that allows a guardian or family member to make health care decisions for an individual who can't make them for themselves.