Elder Law Minute TM
HEALTH CARE PROXY – A Refresher Course
By Ronald A. Fatoullah, Esq. and Lian Kuang-Maoga, Esq.
New YorkState’s health care proxy statute allows a person to plan ahead and ensure his or her wishes as to health care decisions are followed. A “proxy” is an agent named under a document called a Health Care Proxy. This agent is authorized to step into the shoes of the principal and make decisions relating to health care when the principal becomes unable to make those decisions by reason of a physical and/or mental illness. For those who choose not to designate an agent, the new Family Health Care Decisions Act (FHCDA) allows other individuals (mainly family members), in order of priority listed under the law, to have the power to make these decisions. However, under the FHCDA, this power is limited to when an individual is in a hospital or skilled nursing home setting. This article will look at the importance of planning ahead and preparing a health care proxy and the limitations that exists when acting as an agent.
The Health Care Proxy is a powerful legal tool to preserve and document some of the most important wishes of an individual that often touch upon life and death issues. It is used to avoid a guardianship proceeding, which can be a time consuming and costly process of gaining authority to make health care decisions on behalf of a loved one. An agent’s authority under a Health Care Proxy applies in both an institutional and non-institutional setting unlike the authority given under the FHCDA as previously mentioned. Also, unlike the FHCDA where a specific list of individuals such as spouse and children are given authority, an individual can name any adult he or she wants to be an agent under the Health Care Proxy. Individuals may also document their wishes as to organ and or tissue donation (NY law allows family members to consent to organ and or tissue donation unless it is known that the individual does not wish to do so). Additionally, individuals may give the agent the authority to receive medical records as required under the Health Insurance Portability and Accountability Act (HIPAA).
There are some limitations placed upon an agent that are important to mention. Generally, a Health Care Proxy form will authorize an agent to make all health care decisions unless specifically limited by instructions under the form. However, agents cannot substitute his or her own wishes in making decisions for the principal. Agents are required to make decisions according to the known, reasonably known, or reasonably ascertainable wishes of the principal. When the wishes of the principal are unknown, the agent must make decisions based on what is in the best interest of the principal. However, for decisions relating to artificial nutrition and hydration such as the use of a feeding tube, if the wishes of the principal are not reasonably known and cannot be ascertained with reasonable diligence, an agent can not make a decision for the principal regarding artificial nutrition and hydration even if the treatment is in the best interest of the principal. Therefore, it is important that individuals make wishes known by specifying in the form or through a discussion with the agent, especially regarding the issue of artificial nutrition and hydration.
Furthermore, an agent is required to obtain a determination that the principal is incapacitated before the agent can step in. As mentioned above, an agent can act only if the principal is incapacitated. The agent must consult with one of the following list of professionals for a determination: a licensed physician, registered nurse, licensed psychologist, licensed master social worker, or a licensed clinical social worker. There are no limitations on where or how the consultation must take place as long as it is done prior to the agent acting on behalf of the principal. An agent is not precluded from engaging in a consultation by phone or with a physician that is not the primary care physician of the principal. The consultation need not be made simultaneously with the agent’s decision, so it may occur days, weeks or months before an agent needs to make decisions.
A critical component that must be considered along with the preparation of a health care proxy is the conversation between the individual and the agent concerning personal wishes and preferences regarding health care treatment. An agent is often required to step in to make critical end of life decisions for a loved one, such as whether or not a feeding tube should or should not be used. Conversations about health care and end of life decisions must not be glossed over. It is crucial for individuals and their agents to not only learn about the powers and limitations under a health care proxy, but also take time to discuss the health care wishes of the principal.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, NY. Mr. Fatoullah has been named a “fellow” of the NationalAcademy of Elder Law Attorneys and is a former member of its Board of Directors. He is also a member of the Executive Committee of the Elder Law Section of the New York State Bar Association. Mr. Fatoullah has been Certified as an Elder Law Attorney by the National Elder Law Foundation. Mr. Fatoullah is a co-founder of Senior Umbrella Network of Queens. This article was written with the assistance of Lian Kuang-Maoga, Esq.The firm can be reached by calling (718) 261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.