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

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.  

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 --

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:

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



Article ID: 131
Last updated: 30 Jan, 2018
Revision: 3
Health Care Decisionmaking -> Who Will Make Decisions About Your Health Care When You Lack Capacity to Do So?
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