Position Statement – 2012
S.5014A (DeFrancisco) / A.8389 (Lavine)
Health Care Proxy Reform
The Women’s Bar Association of the State of New York (“WBASNY”) supports legislation to expand the authority of a health care agent in the situation when the principal is outside of a hospital, mental hygiene facility or residential health care facility and is in an unconscious or unresponsive state. Currently, the agent is powerless in such a situation. This has proven to be severely detrimental to the principal’s wishes – as was the case in Stein v. Barthelson, No. 09-3682-cv, 2011 WL 1332052 (2d Cir. Apr. 8, 2011). In the Stein case, the agent was unable to direct to which health care facility the principal (her husband) should be transported.
The current Public Health Law often leaves a desperate family in an emotionally difficult situation more desperate and confused as to why advance planning has failed them. There is a common belief that a validly executed health care proxy is immediately usable in every situation. This is not so. Currently, under Public Health Law §2981 and §2983, a determination of incapacity must first be established by an attending physician before the agent becomes empowered to make decisions on the principal’s behalf.
The Senate Bill will remove that requirement if the principal is outside of a hospital, mental hygiene facility or residential health care facility and is found unconscious or unresponsive. In such situation there will be a presumption of incapacity for the limited purposes of empowering the health care agent to make health care decisions in regard to the principal’s placement in a particular hospital, mental hygiene facility, residential health care facility and/or choosing a health care provider.
WBASNY, with over 3,500 members from eighteen chapters across the State, is the largest statewide bar association dedicated to promoting the advancement of women in the legal profession and in society. Our mission commits us to improving the status of all women, and WBASNY addresses complex legal issues as we advocate for change for women and children throughout the state, and promote the fair and equal administration of justice for all. Members of WBASNY include individuals from all levels of the state and federal benches, as well as prominent attorneys practicing in all areas of the law, educators and government leaders.