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Who Will Make Decisions About Your Health Care When You Lack Capacity to Do So?

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Posted: 08 Sep, 2010
by Valerie Bogart (New York Legal Assistance Group)
Updated: 30 Jan, 2018
by Valerie Bogart (New York Legal Assistance Group)

This article explains the current New York State law regarding who can make decisions about one's health care when one lacks capacity to make those decisions for oneself.   This article describes and provides links to further information about:

(1)  Health Care Proxies -- allows someone with mental capacity to appoint a trust person to make health care decisions in the event that one later loses capacity

(2)  The Family Health Care Decisions Act, effective June 2010 -- since some people do not sign Health Care Proxies, sets up a procedure to appoint a "surrogate" who may make such decisions

(3)  Do Not Resuscitate Orders, and

(4)  Medical Orders for Life-Sustaining Treatment)(MOLST)

(5)  Palliative Care Information Act - new law signed August 13, 2010 effective February 10, 2011

New York Health Care Proxy Law

The New York Health Care Proxy Law allows people over age 18 to appoint someone they trust - for example, a family member or close friend (but not their own treating physician) -- as their "health care agent" to make health care decisions for them if they lose the ability to make decisions themselves. By appointing a health care agent, one can make sure that health care providers follow his or her wishes.  Of course, one must have mental capacity in order to sign a health care proxy.  If one no longer has capacity, then decisions will be made under the Family Health Care Decisions Act, below.  

  • The New York State Dept. of Health website posts:

    • Guides to help people discuss their wishes for end of life treatment, and 

    • Official NYS Health Proxy Forms in 

      • English - Revised 11/2015 (PDF)
      • Chinese (PDF)
      • Haitian Creole (PDF)
      • Italian (PDF)
      • Korean (PDF)
      • Russian (PDF)
      • Spanish (PDF)
      • WARNING:     If you just fill in the blanks with your name, address, etc. and your health care agent's name, address, and sign the proxy before the required witness, your agent will NOT have the authority to  make decisions about artificial nutrition and hydration (nourishment and water provided by feeding tube or intravenous line) unless you expressly write this authority into the space on Question 4.  See the ONLINE Instructions.  

  • CONSUMER FACT SHEETS FOR CHINESE ELDERS -- English and Chinese -- on health care proxies, living wills and powers of attorney,  written by Yan Lian Kuang-Maoga, Esq., a Borchard Foundation Center on Law & Aging  2009-2010 Fellow sponsored by Main Street Legal Services, the clinical program at CUNY School of Law.  The translation into traditional Chinese characters was done by, Meng Zhang, a Queens College  student who graciously volunteered her services. It is intended to be used as an informational handout specifically for Chinese elders.

New York’s Family Health Care Decisions Act - effective June 1, 2010

See our extensive article on the FHCDA

Do Not Resuscitate Orders (DNR)

There is a legal presumption that a patient who goes into cardiac or respiratory arrest should receive Cardio-Pulmonary Resuscitation (CPR).  A DNR order creates an exception to this rule -- allowing CPR to be withheld in the event a person suffers a cardiac or respiratory arrest.  Types of CPR include

There are two types of DNR orders - Hospital and Non-hospital DNR. 

1.   Non-Hospital DNR --

  • Form for a Nonhospital Order Not to Resuscitate (DNR Order).   A DNR bracelet may also be worn, but is not required.

  • A DNR is signed by a doctor,  or, after May 1, 2018, by an attending nurse practitioner. (2018 change was made under the DNR Bill (S.1869 Hannon / A. 7277 Gottfried), signed into law Nov. 29, 2017.)   To be effective, it requires the oral or written consent of either the patient, if s/he has mental capacity, or an agent appointed by a health care proxy, or a "surrogate" designated through the new FHCDA procedure.  In some cases, a second physician must agree with the DNR order.   The consent may be revoked, and if revoked, must be recorded in the medical record.

  • The DNR must be renewed and re-signed by the physician or, after May 1, 2018, attending nurse practitioner, at least every 90 days.  

  • Non-hospital DNR orders must be honored by emergency medical services personnel, hospital personnel, and, under the 2010 changes,  by home care agency staff and hospice staff. However, any of these personnel may disregard a DNR if they have a good faith belief that it has been revoked or canceled, or if family members on the scene "object to the order and a physical confrontation appears likely."   Public Health Law Ch. 29-CCC.sect. 2994-ee.   

    • TIP:   Ask for a copy of the renewed order and post it prominently on patient's refrigerator, etc. for EMS personnel to see.

  • If a patient with a non-hospital DNR is admitted to the hospital,  or is transferred to a different hospital, the DNR must be honored until a physician reviews it and either issues orders continuing the DNR or canceling it, after making reasonable attempts to notify the physician who originally issued the DNR and the hospital staff responsible for patient's care that s/he is canceling it. PHL  2994-l, 2994-ff. 

2.   Hospital DNR 

     Hospital DNRs are now controlled by the new Family Health Care Decisionmaking Act,  described above. 

Medical Orders for Life-Sustaining Treatment)(MOLST)

The MOLST form brings together in one form all of a patient's wishes regarding end-of-life treatment - a health care proxy, DNR, and living will.  The form can only be completed by an individual who has mental capacity, in consultation with the treating physician.  It helps ensure that the patient's wishes will be honored even as s/he is transferred between hospital, rehab facility or nursing home and home.   In 2008, a new state law was passed that updates the standard form with plain language, and expands its use for all all health care settings including the home. 

The form is mainly intended to be used at the end of life, to help patient decide about where and how s/he wants to receive end of life care.  Patient must have legal capacity when s/he signs it, but it continues to be valid after patient loses capacity. 

Palliative Care  Information Act - new law signed August 13, 2010 effective February 9, 2011

If a patient is diagnosed with a terminal illness or condition, the patient's attending physician or nurse practitioner(s) shall offer to provide the patient with oral or written information and counseling regarding palliative care and end-of-life options appropriate to the patient, including but not limited to:

  • the range of options appropriate to the patient;

  • the prognosis, risks and benefits of the various options; and

  • the patient's legal rights to comprehensive pain and symptom management at the end of
    life.

Where the patient lacks capacity to reasonably understand and make informed choices relating to palliative care, the attending health
care practitioner shall provide information and counseling under this section to a person with authority to make health care decisions for the patient.

The attending health care practitioner may arrange for  information and counseling under this section to be provided by another professionally qualified individual. . Where the attending health care practitioner is not willing to provide the patient with information and counseling under this section, he or she shall arrange for another physician or nurse practitioner to do so, or shall refer or transfer the patient to another physician or nurse practitioner willing to do so.

NYS Public Health Law, § 2007-C, added by L. 2010 Ch. 331 (A07617)

COMMENT:  This law was enacted at the behest of Compassion and Choices of New York, a non-profit.  It was opposed by the Medical Society of New York for intruding on the patient-physician relationship and mandating "a legislatively designed standard of care."  Proponents say that physicians were already under an ethical and legal obligation to provide this information, and they cite research proving the benefits of palliative care combined with traditional medical treatment.   See Jane Brody, Frank Talk About Care at Life's End, New York Times, Aug. 23, 2010

Attached files
item Chinese Elder Handout- Chinese FINAL.pdf (264 kb) Download
item Chinese Elder Handout - Final English.pdf (116 kb) Download

Also read
item Family Health Care Decisions Act

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