March 19, 2010

As of Tuesday, March 16, 2010, New York has joined 48 other states in allowing a spouse, domestic partner, or other family member to make health care decisions when a loved one is unable to do so for themselves and does not have a health care proxy on record. Previously, approximately 75,000 people a year have died in New York hospitals in this exact situation.

With the support of over 100 organizations such as AARP, Alzheimer’s Association, American Cancer Society, NYS Bar Association, Excellus Blue Cross/Blue Shield, just to name a few and the sponsorship of Assembly Member Richard N. Gottfried and Senator Thomas K. Duane, the bill passed both the Assembly and the Senate with enthusiastic approval.

The gist of the matter boils down to the fact that even though patients did not go through the formal process of creating a health care proxy or provide their family with “clear and convincing” evidence of their health care wishes, they shouldn’t be subjected to either burdensome or unwanted treatments or denied appropriate treatment altogether. This has unfortunately been the case for too long. This new law puts an end to it altogether.

Specifically, The Family Health Care Decision Act (FHCDA), signed into law on March 16th, 2010, now gives family members and others who are close to the patient, the legal authority to act on behalf of the patient when it comes to making decisions concerning the patient’s medical treatment. The law includes numerous safeguards to ensure that sound medical treatment and any other decisions are consistent with the patient’s wishes and in the patient’s best interest.

However, it is still important and recommended to have advance care directives on file with our doctors, your elder law attorney and your family members. This new law certainly DOES NOT eliminate the need for such crucial paperwork. As a matter of fact, it is extremely important, as it always has been, to be sure you engage in conversation with those you trust in an effort to clearly spell out your wishes and desires for medical care options.

Legal documents such as a health care proxy, a New York State Living Will and a Medical Order for Life Sustaining Treatment (MOLST) are necessary tools that should be put into place to avoid any future confusion in a very stressful situation. The good news is that is you don’t have these documents, the people that you’d want to make these decisions for you, can now do so.