Aren’t they still trying to figure out who actually has power of attorney here? Life death decisions are up to the spouse (Jennifer the one they are claiming is alive somehow). Good luck with trying to get his relatives able to make a decision at this point. Attorneys? Want to weigh into the fray? If he has no living will who at this stage can control any decisions about his medical care?
Someone posted earlier that in NYS a sister can make decisions.
https://ag.ny.gov/sites/default/files/advancedirectives.pdf
IF YOU DON’T HAVE AN ADVANCE DIRECTIVE
If you have lost the capacity to make decisions about your medical treatment, and have not appointed a health care agent, a person close to you may make decisions on your behalf. In 2010 the New York Legislature passed the Family Health Care Decisions Act (FHCDA),7 which allows family members and others who are close to you to make decisions regarding medical treatment in accordance with your wishes or, if unknown, your best interests. The “surrogate” decision maker would also be permitted to direct the withdrawal of life-sustaining treatment (including consenting to a DNR order).
The best way to ensure that your specific wishes are met is to
select a Health Care Proxy and complete a living will as described in this booklet. Otherwise, you will not be able to control how you receive care while you are incapable of making a decision.
Designation of a Surrogate
If you are declared incapable of making medical decisions and do not have a health care proxy, the FHCDA provides for the designation of a “surrogate” decision maker to make medical decisions for you as outlined under New York law.
The law establishes a prioritized list by category of those who may act as the surrogate decision maker for the incapacitated person. The surrogate may be, in order of priority, the court-appointed guardian, spouse, child (eighteen years or older), parent, sibling (eighteen years or older), or close friend.8 This person may also designate a person with lower priority to be the surrogate, assuming no one with higher priority can take the role. For example, if you do not have an Article 81 guardian and your spouse is not willing to serve, your willing adult child will be your surrogate. Your adult child may also appoint your willing parent as surrogate.
Decisions a Surrogate Can Make
The surrogate has authority to make all health care decisions that the patient would have been able to make prior to becoming incapacitated.9 The surrogate is obligated to follow religious or moral beliefs, if known. If those beliefs are not known, the surrogate must make decisions that will be in the patient’s best interests.10
Surrogates are entitled to have access to your medical records in order to make decisions on your behalf. They may also seek out information from your doctor about your condition and treatment options to make the most informed medical decisions.11
If the Patient’s Wishes and Beliefs Are Unknown,
the surrogate must make decisions that will be in the patient’s best interests. According to the FHCDA, those interests take into account “consideration of the dignity and uniqueness of every person; the possibility and extent of preserving the patient’s life; the preservation, improvement or restoration of the patient’s health or functioning; the relief of the patient’s suffering; and any medical condition and such other concerns and values as a reasonable person in the patient’s circumstances would wish to consider.”
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Decisions to Withdraw Life-Sustaining Treatment
If you made the decision to withdraw life-sustaining treatment before becoming incapacitated, your doctor need not seek the surrogate’s permission or knowledge before following those orders. If your doctor followed those orders before your surrogate was appointed, he or she merely needs to document the action in your medical record. If your doctor intends to follow through on that decision after the appointment of a surrogate, your doctor may follow that order without permission from the surrogate, but must inform or attempt to inform the surrogate of the decision.12
The law ensures that life sustaining treatment will not be withheld or withdrawn from you without serious consideration. For example, there must be a finding that treatment would be an extraordinary burden to you and an attending physician, with another physician, must concur to a reasonable degree of medical certainty. Other requirements include finding that you have an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or that you are permanently unconscious; or that treatment would involve such pain and suffering that it would be reasonably deemed inhumane or extraordinarily burdensome and that you have an irreversible or incurable condition.13
Patient Objections
As the patient, you may object to:
• Thedeterminationofyourincapacity;
- The choice of surrogate; and
- The health care decision made by your surrogate.
In the event you disagree with any of these determinations, your determination will be followed by your doctor. However, if a court determines that you lack capacity and (if applicable) authorizes the treatment decision, you cannot override these determinations. Further, if there is some other legal basis for overriding your decisions, you will be subject to the choices made by your surrogate.14
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