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Family Health Care Decisions Act
June 8, 2010

In March of this year, Governor Paterson signed into law the Family Health Care Decisions Act (FHCDA). The law allows family members to make medical decisions, including decisions about withholding or ending life-sustaining treatment, on behalf of individuals who have lost their ability to make such decisions and have not prepared advance health care directives (such as a Health Care Proxy or Living Will).

This law establishes a procedure for health care professionals to follow which helps to determine whether a patient has the capability to make his/her own decisions. If the medical professionals determine that a patient does not have decision-making ability, the law requires the selection of a ‘surrogate’ from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

NOTE: The Family Health Care Decisions Act may give some a false sense of security and belief that written advance health care directives (Health Care Proxy or Living Wills) are not needed.

The FHCDA will not solve problems where individuals desire to make very specific medical decisions for themselves based upon their own personal, religious or moral beliefs. Additionally, in family disputes, there may still be issues. For example, if several siblings have differing opinions regarding medical care for a parent, there may be problems to address.

Without advanced written directives for medical care, family members are left in the uncertain situation of trying to figure out what to do. The FHCDA clarifies a decision-making hierarchy that may be helpful in emergency situations; however, the law does not prevent the need for a Health Care Proxy and/or Living Will. Under the law, the health care surrogate is obligated to make decisions based on “clear and convincing evidence” of the patient’s wishes. The best way for a patient to express his/her own wishes, avoid family conflicts and select one’s own health care agent is to have a written health care directive (Health Care Proxy and/or Living Will).

For more information about the FHCDA, please visit the New York State Bar Association’s website at:www.nysba.org/fhcda.

*Written with assistance from Merika Wilson

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