On June 24, 2015 a trial Court in California invalidated a California law as unconstitutional, which created a default surrogate decision maker when that individual is mentally incapacitated and does not have a family member, or anyone else for that matter, to make key decisions for them. The law and the issues addressed are not limited to California. Even though by definition, the law deals with individuals with no proxy decision maker, that does not mean someone did not exist in the past or could not step up to become one. Proxy decision makers pass away themselves, they move or simply just fade away and no longer attend to their responsibilities. New York law deals with these issues in a rather collaborative way. In 2010, New York enacted the New York Family Health Care Decisions Act, which creates a decision ladder for medical professionals who need to know with whom to check with for certain critical decisions. It was designed to avoid the parade of horribles that the California law dealt with. Certainly, no one wants a loved one or relative, even a distant relative, to have to rely on these provisions; they are used as a last resort.
DETERMINATION OF INCAPACITY
In the absence of a health care proxy, The New York Family Health Care Decisions Act begins to shape decisions, for all intents and purposes, at the time of the determination of incapacity.