By Robert L. Ecker, JD, CPA, Kurzman & Eisenberg

After many legislative attempts over the past few years, the New York State Legislature finally passed a Health Care Proxy Law on July 22, 1990. The Health Care Proxy Law allows a competent adult to appoint an agent to make health care decisions on his or her behalf when such individual is unable to make health care decisions. The new law became effective on January 18, 1991.

The Health Care Proxy Law was enacted as Article 29-C of the New York Public Health Law. By executing a health care proxy, an individual (principal) can designate a health care agent who will have authority to make any and all health care decisions on the principal's behalf. Unless the principal specifically limits authority in the health care proxy itself, the agent's authority to make health care decisions will be unlimited. The principal can also provide detailed instructions, orally or in writing, to the health care agent expressing his or her wishes.

Activating the Health Care Proxy

The health care proxy is similar to a "springing" durable power of attorney, because the agent's authority is triggered or commences when the principal is determined to be unable to make health care decisions. Such determination must be made in writing by the principal's attending physician and state that the principal lacks capacity to make health care decisions. The determination must contain an opinion regarding the cause and nature of the principal's incapacity as well as its extent and probable duration and must be included in the patient's medical record. Capacity relates to the principal's ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of, and alternatives to, any proposed health care. If a decision involves whether to withdraw or withhold life sustaining treatment, a written determination regarding the principal's capacity must be obtained from a second physician.

Once the health care agent's authority to act is triggered, the health care agent is required to make health care decisions in accordance with the principal's wishes as known to the agent, including consideration of the principal's religious and moral beliefs. If the principal's wishes are not reasonable, known, or cannot, with reasonable diligence, be ascertained, the health care agent must act in accordance with the principal's best interests. It should be noted, though, that a health care agent has authority only to make decisions regarding the administration of artificial nutrition and hydration if the principal's wishes are known or can be ascertained with reasonable diligence. Therefore, if the principal intends for the health care agent to have authority to make decisions with respect to artificial nutrition and hydration, it would be advisable for the principal to discuss this with the agent and include instructions in the health care proxy itself.

The health care agent can be any individual appointed by the principal. However, if a physician is appointed as the health care agent, the physician cannot also act as the principal's attending physician, responsible for making the determination that the principal lacks capacity to make health care decisions.

No Big Deal

It is relatively straightforward to create a health care proxy. It is a document signed by the principal containing the name of the principal and the designated health care agent and a statement that the principal delegates authority to the agent to make health care decisions. The principal's signature must be witnessed by two adults, neither of whom are appointed as the health care agent. A statement must also be included in the proxy which states that the witnesses attest that the principal executed the proxy willingly and free from duress.

As indicated, the proxy may include specific instructions limiting the health care agent's authority, as well as providing for an alternate agent. An expiration date or an event that triggers expiration may also be included, at which time the health care agent no longer has authority to act. If the health care proxy does not provide for its expiration, the proxy remains effective indefinitely, until revoked by the principal either orally or in writing, or by executing a subsequent proxy.

The law includes a model proxy, which may, but is not required to, be used. In addition, the New York State Department of Health has prepared a model health care proxy form, which it will be distributing to the public. Although practitioners may prepare their own forms, it is advisable to follow these model forms closely because they are sure to gain widespread acceptance.

The creation of a health care proxy is purely voluntary. However, without a proxy, family members will have no legal authority to forego life-sustaining treatment for a patient, without resorting to court intervention. Prior to this legislation, New York courts upheld a patient's right to make decisions with respect to life-sustaining treatment, but only if such wishes could be demonstrated by clear and convincing evidence. As a result, it was recommended that individuals desiring to forego life-sustaining treatment execute a living will.

The health care proxy offers several advantages that a living will does not, but a living will should be considered in conjunction with a health care proxy. To begin with, a health care proxy is more flexible because it creates a decision making process as opposed to providing a vehicle that merely expresses in writing an individual's wishes regarding certain treatments. In addition, the health care proxy covers all decisions about health care, including decisions to continue treatment, if desired, rather than being limited to certain decisions such as life-sustaining treatment. However, if an individual does not desire to have life-sustaining treatment such as artificial nutrition and hydration administered, a living will should be executed along with a health care proxy to make clear the principal's wishes.

Procedure for Objecting

The law provides that a health care provider (i.e., a health care professional or facility), must comply with decisions made by a health care agent to the same extent as if such decisions had been made by the principal. However, the law permits licensed health care professionals to refuse to honor an agent's decision based on "sincerely held moral convictions or religious beliefs," provided that the professional would have objected to the same decision if made by the principal, promptly informs the facility and the health care agent of his or her refusal, and cooperates in facilitating the transfer of the patient to another professional willing to honor the decision. Private health care facilities can also object to an agent's decision based on "religious convictions" or "sincerely held moral convictions central to the facility's operating principle." However, these objections can only be raised if they are set forth in a formally adopted policy, the facility has informed the patient or the health care agent of such policy prior to or upon admission, if reasonably possible, and the patient is transferred promptly to another facility that is reasonably accessible under the circumstances.

Finally, the law provides that the person acting as a health care agent pursuant to a health care proxy, as well as a health care provider honoring a health care decision by an agent in good faith, will not be subject to criminal or civil liability or be deemed to have engaged in unprofessional conduct.

Part of Estate Planning

New York State residents now have the opportunity to designate an individual or individuals to make health care decisions on their behalf in the event they lose decision making capacity. A health care proxy and a living will should be discussed with every client as a routine part of an estate plan, along with the creation of a Durable Power of Attorney to insure that financial affairs will be attended to in the event of disability.

Editors: Burton L. Shepard, JD, CPA Lopez, Edwards, Frank & Co. Nadine Gordon Lee, CPA Ernst & Young Contributing Editors: Martin J. Salzman, CPA Reminick Aarons & Company Richard H. Sonet, JD, CPA Zeitlin, Benado, Sonet & Witt Joseph V. Falanga, CPA Goldstein Golub Kessler & Company Dan A. Diers, CPA Rashba & Pokart David Gerson, CPA Ernst & Young