The new law covers New York residents (other than the developmentally disabled and the mentally retarded who are covered under a different statute) who lack the capacity to make health care and end of life decisions for themselves, even if such individuals previously had capacity but never expressed their wishes in a health care proxy or living will.  This new law was 17 years in the making.

 

The new law establishes a hierarchy of surrogates authorized to make health care and end of life decisions.  The list is broad enough to help insure that every incapacitated individual can have a surrogate appointed. 

 

The following individuals are authorized by the statute to act as surrogate for an incapacitated individual:

 

1.     An Article 81 guardian who is authorized by the Supreme Court to make health care decisions;

2.     A spouse of the incapacitated individual, provided they are not legally separated; or a domestic partner;

3.     A son or daughter who is 18 or older;

4.     A parent;

5.     A brother or sister who is 18 or older; and

6.     A close friend

 

The Surrogate's health care decisions must be made in accordance with the patient's wishes including religious and moral beliefs.  If not known then the standard for the surrogate is the patient's best interest.