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.


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.  

  • First, there is an in house decision making process by which specially licensed individuals may decide if a patient lacks the capacity to decide certain health care decisions;
  • Second, if there is a determination that the patient lacks capacity, the patient and the prospective surrogate;
  • If the patient objects to the determination, or the choice of surrogate, the patient’s decision controls;
  • Unless there is a legal determination of incapacity by a Court.

Each step outlined above has further breakdowns in procedures to help avoid the matter escalating to the next step.  For example, step two notes that if there is a determination of incapacity, the first person who may act is a court appointed guardian, if there is one, next is a spouse, an adult child, a parent, a sibling, even a close friend.  The surrogate decision maker’s consent is not necessary if the patient already made a decision, even if only made orally and not memorialized in writing.  The decision must be in line with the moral and religious beliefs of the patient.  


The New York Family Health Care Decisions Act by definition does not cover those who have a valid health care agent via a health care proxy, as well as other circumstances, such as when a guardian is appointed due to mental or cognitive limitations.  The issue of allowing essentially a stranger, albeit a well intentioned and competent one, can be avoided by creating a well crafted health care proxy with multiple contingencies built into it.  Health care proxies can allow for a second health care agent in the event that the first health care agent is not available. A third and fourth even can be named in the event that the the first two or three are not available.  

There is no better way to deal with these issues than by consulting with an elder law attorney who can create a road map to avoid these issues.   

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