In 2010, Governor David Paterson signed into law the Family Health Care Decisions Act. The law allows family members to make health care decisions on behalf of family members who lose their ability to make their own decisions and have not prepared advance medical directives regarding their wishes. Estate planning not only involves creating a will or creating a trust to handle property, but drafting these advance medical directives to state your wishes in the event you are unable to do so on your own.
Should a New Yorker have a health care proxy form and/or a living will, these documents will allow you to still have a say in your health care decisions by appointing someone to act on your behalf or giving your wishes regarding treatment decisions.
The bill sets up an order for who is responsible for such decisions when there are no advance medical directives in place, ranking spouses and domestic partners first in a hierarchy of surrogates (unless there is a court-appointed guardian), followed by children, parents, siblings and close friends. The law also allows the health care proxy or agent, to consider not just the patient’s wishes, but also the patient’s best interests.
Without a law such as the Family Health Care Decisions Act, the common law of New York State provides that life-sustaining treatment may not be withdrawn or withheld from a person who has lost the capacity to make their own decisions, unless ‘clear and convincing’ evidence can be produced to show that the patient would have declined treatment if they had the capacity to do so. An advance directive, such as a living will, a medical power of attorney or a health care proxy, can serve as that clear and convincing evidence of a patient’s wishes, but many people do not prepare these estate planning documents while they are competent to do so.
Estate planning allows you to plan for situations that may come up later in life, such as preparing documents that can take effect in the event of incapacitation. This allows you to maintain control and clarify your wishes, which eases the burden of leaving these decisions in the hands of loved ones or the law.
Michael Robinson, Estate Planning Attorney
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