Surrogate’s Authority

A surrogate has the authority to make any and all health care decisions on an adult patient’s behalf that the patient would make for him or herself, if they weren’t unable to. However, a health care provider is not obligated to seek the consent of a surrogate if the patient has already made a decision about a proposed health care treatment and expressed that decision orally or in writing (advance directive).

A surrogate’s authority commences upon a determination by the patient’s attending physician (in addition to any other health care practitioners as required by New York State law) that the patient lacks decision-making capacity. If the patient’s attending physician determines that the patient has regained decision making capacity, the surrogate’s authority shall cease.

The surrogate’s authority does not apply if the surrogate has no financial responsibility for the medical care they determine is in the best interests of the incapacitated patient unless they have an independent obligation under law, such as a spouse. A surrogate, health care provider or members of an ethics committee will not be subject to criminal or civil liability for action taken in good faith under the Family Health Care Decisions Act.

Once the surrogate’s authority is triggered, the surrogate must make health care decisions:

  • In accordance with the patient’s wishes, including the patient’s religious and moral beliefs; or
  • If the patient’s wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the patient’s best interests. An assessment of the patient’s best interests shall include:
    • 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.

Withholding Life-sustaining Treatment

With respect to a decision to withdraw or withhold life-sustaining treatment made by a patient prior to the appointment of a surrogate, the patient must have expressed the decision either:

  • In writing; or
  • Orally, during a hospitalization, in the presence of two witnesses, both of whom are 18 years of age or older, and at least one of whom is a health or social services practitioner affiliated with the hospital.

If the treatment decision made by a surrogate involves the withdrawal or withholding of life-sustaining treatment the law imposes additional conditions on the surrogate’s authority. In order to withdraw or withhold life-sustaining treatment, a surrogate must show that:

  • The treatment would be an extraordinary burden to the patient, and an attending physician determines, with the independent concurrence of another physician, that, to a reasonable degree of medical certainty and in accord with accepted medical standards:
    • The patient has an illness or injury which can be expected to cause death within six months, whether or not treatment is provided; or the patient is permanently unconscious; or
    • The provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances, and the patient has an irreversible or incurable condition.

For decisions to withdraw or withhold life-sustaining treatment, the law further requires a referral to the facility’s ethics review committee in these situations:

  • If the surrogate wants to refuse life-sustaining treatment in a nursing home (not including CPR); or
  • If the attending physician at a hospital objects to a surrogate’s decision to withdraw or withhold nutrition and hydration provided by means of medical treatment. In order to make these decisions, hospitals must give surrogates access to the patient’s medical information, medical records, diagnosis, prognosis, the nature and consequences of the health care and the benefits and risks of treatment; or
  • The patient has already made a decision about the proposed health care, expressed orally or in writing; or
  • The patient has made a decision to withdraw or withhold life-sustaining treatment; or
  • The patient has expressed orally during hospitalization in the presence of two witnesses 18 years of age or older, at least one of whom is a health or social services practitioner affiliated with the hospital, or expressed in writing.