Authority of a Health Care Agent & Surrogate

Health Care Agent’s Rights and Obligations

Under New York’s Health Care Proxy Law, a Health Care Agent:

• Is required to make medical decisions that are patient-centered, according to the patient’s wishes, religious and moral beliefs and in the best interest of the patient.
• Must make medical decisions that are in the best interest of the patient, if the patient’s wishes are not reasonably known and cannot be determined.
• Cannot make medical decisions according to the health care agent’s wishes, religious and moral beliefs, and in the best interest of the health care agent.
• Has the authority to decide whether or not your heart beat should be restarted through cardiopulmonary resuscitation (CPR) and decisions related to other life-sustaining treatment
• Will only have the authority to make decisions related to artificial hydration and nutrition if the individual has communicated wishes to their health care agent. Artificial hydration and nutrition can be given as liquid fluids or food by a tube inserted in the stomach or by a plastic tube (catheter) inserted into the vein. Wishes can be told to the agent or written on the Health Care Proxy form.
• Authority begins only if a person loses the ability to make medical decisions.
• Has the right to get medical information and records to make informed health care decisions for the patient once a health care agent’s authority begins.
• Makes a final decision unless an objecting family member or facility obtains a court order overriding the decision or disqualifying the agent.
• Is not financially responsible for the cost of your care.

Surrogate’s Rights and Obligations

Under New York’s Family Health Care Decisions Act, a Surrogate:

• Is required to make medical decisions that are patient-centered, according to the patient’s wishes, religious and moral beliefs, and in the best interest of the patient.
• Must consider:
  • the dignity and uniqueness of the 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
  • any medical condition and such other concerns and values as a reasonable person in the patient’s circumstances would wish to consider.
• Must make medical decisions that are in the best interest of the patient, if the patient’s wishes are not reasonably known and cannot be determined.
• Cannot make medical decisions according to the health care agent’s wishes, religious and moral beliefs, and in the best interest of the health care agent.

Under New York’s Surrogate’s Court Procedure Act 1750-b (SCPA § 1750-b), a § 1750-b Surrogate:

• Allows an Article 17-A Guardian or actively involved family members to make medical decisions, including end-of-life decisions related to the withholding and/or withdrawing life-sustaining treatment for individuals with developmental disabilities (DD) who lack the ability to make these decisions.
• The guardian or actively involved family members must base all advocacy and medical decision-making solely and exclusively on the best interests of the person with DD and on the person’s wishes, moral and religious beliefs.

MOLST Represents “Clear & Convincing” Evidence

The patient’s decision on the MOLST form represents “clear and convincing” evidence of the patient’s preferences for any or all life-sustaining treatment the patient wishes to receive or avoid, based on current health status and prognosis.

If the patient requests no limitations on medical interventions after a thoughtful MOLST discussion based on current health status and prognosis, the decision represents a desire to receive the standard of care at that time.

All health care professionals must follow these medical orders as the patient moves from one location to another.

What a Health Care Agent and Surrogate Cannot Do¹

If the patient loses the ability to make MOLST decisions and the patient has already made decisions to withhold certain life-sustaining treatment (e.g. Do Not Resuscitate (DNR) and Do Not Intubate (DNI), the health care agent or surrogate cannot undo the patient’s decision.

What a Health Care Agent and Surrogate Can Do¹

If the patient loses the ability to make MOLST decisions and the patient has requested full treatment for certain life-sustaining treatment, the health care agent or surrogate can make a decision to withhold and/or withdraw other life-sustaining treatment on the MOLST for which the patient requested full treatment, as full treatment represents the standard of care.

For example, a decision to forego future hospitalization, a feeding tube or other life-sustaining treatment can be made if it is consistent with known wishes or in the best interest of the patient, based on a major change in health status or prognosis.

¹Bomba PA, Karmel J. Medical, Ethical and Legal Obligations to Honor Patient Preferences. NYSBA Health Law Journal Spring/Summer 2015; 20(2):28-33.