Have you thought about how health care decisions will be made if you no longer have the ability to make such decisions for yourself? This is typically accomplished through the execution of an advance directive. An advance directive is a written or oral instruction relating to the provision of health care when an adult becomes incapacitated.
The Patient’s Rights
New York has long recognized that an adult of sound mind has the right to consent to or refuse a recommended treatment. In several cases decided during the 1980s, the New York Court of Appeals established that the right of competent adults to refuse medical treatment, including life sustaining treatment, is protected under both the Due Process Clause of the State Constitution and the common law right of informed consent.
Where the patient is unable to make decisions, such treatment may be withheld only if there is clear and convincing evidence of the patient’s wishes. No one, not even a family member, may authorize the withdrawal or withholding of medical treatment for an incompetent patient in the absence of such clear and convincing evidence.
The clear and convincing evidence standard is an extremely difficult one to meet, however. In part because of the difficulty of this standard and in part to address a range of issues arising from advances in medical technology, New York adopted the Health Care Proxy Law.
The law grants competent adults the right to appoint someone they trust to make decisions about medical treatment on their behalf. The appointment is made on a health care proxy form, sometimes referred to as a health care power of attorney. The person appointed to make health care decisions is known as a health care agent.
Legal Requirements for Designating a Health Care Agent
The health care proxy form must:
- Identify the principal (person making the appointment);
- Identify the person being appointed as health care agent;
- State that the principal intends the agent to have authority to make health care decisions on the principal’s behalf; and,
- Be signed and dated by the principal in the presence of two adult witnesses who also must sign the proxy.
Another person may sign on behalf of the principal if the principal is unable to do so provided the signing is at the principal’s direction, in the principal’s presence, and in the presence of two adult witnesses.