Family Health Care Decisions Act

Q: What is the Family Health Care Decisions Act? Is this different from a health care proxy?

A: The Family Health Care Decisions Act (FHCDA) is a law in New York that enables a patient’s family member of close friend to make medical treatment decisions if the patient lacks capacity and did not previously make such decisions or appoint a health care agent.

Where the patient has executed a Health Care Proxy (a signed document witnessed by two individuals in which the principal appoints a health care agent to make medical decisions for him/her if he/she is unable to) the FHCDA does not apply, nor does the Act apply to patients who have a court-appointed guardian under SCPA 1750-b (guardians of persons who are intellectually and developmentally disabled).

If a patient lacking decisional capacity is in a hospital or residential care facility, and the patient doesn’t already have a health care agent, the Family Health Care Decisions Act establishes an order of priority of the individuals who may make health care decisions for the patient: (1) a Mental Hygiene Law Article 81 court-appointed guardian (if there is one), (2) the patient’s spouse or domestic partner, (3) an adult child, (4) a parent, (5) a sibling, (6) a close friend.

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A decision-maker under the FHCDA is required to take into account the patient’s wishes, including religious and moral beliefs, or if the patient’s wishes are not reasonably known, to base the decision on the patient’s best interests. There are additional requirements regarding decisions to withhold or withdraw life-sustaining treatment. Specifically, a decision-maker under the FHCDA may only withhold life-sustaining treatment if the treatment would be an extraordinary burden and the patient is terminally or permanently unconscious, or if the patient has an incurable condition and treatment would involve so much pain and suffering that imposing such treatment would be inhumane under the circumstances.

While the Family Health Care Decisions Act is a valuable safety net for individuals who don’t have a health care agent, it remains essential to execute a Health Care Proxy because only then can you specifically designate who you want making medical decisions for you (as opposed to having to rely on the order of priority set forth in the FHCDA, discussed above). Moreover, in the Health Care Proxy document you can clearly establish your wishes, in writing, as to medical treatment and provide your health care agent with instructions regarding your care.

If you do not already have a Health Care Proxy, you should retain an experienced elder law attorney who can prepare the document along with other important advance directives such as a Power of Attorney and Living Will.

Nancy Burner, Esq. is the founder and managing partner at Burner Prudenti Law, P.C. focusing their practice areas on Estate Planning, Elder Law and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.