If You Don’t Make a Decision, One Will Be Made For You

My father was ill for many years with a degenerative disease – Parkinson’s. He had his advance directives in order including a healthcare proxy; however he did not choose where he was to be buried. He visited several cemeteries with the family and after seeing all of them we asked him – “So, what do you think?” His answer – “I think I don’t want to die”. After his death, we chose a cemetery for him, I would like to think he would have been satisfied with our choice, but we will never know.

Many people do not have advance directives expressing their wishes regarding their health and their financial life. As with most things in life, if you put off making a decision, one is made for you. Knowing in advance what your choices are will go a long way toward you being satisfied with the outcome. A healthcare proxy is in place in case of your incapacity. It is difficult to think about this topic however ignoring it doesn’t make it go away.

New York’s Family Healthcare Decisions Act

In New York, we have a law, the New York Family Healthcare Decisions Act which offers some protection should you become incapacitated without having executed a healthcare proxy. The caveat is that there is a stated priority for which people have the ability to make decisions for you and they may or may not be the people you would want to make the decisions. Without having had discussions with them about this subject, they also may not be the decisions you would want them to make.

An example of this is where your parents do not approve of your significant other or your adult children do not like your life partner. Without the healthcare proxy which establishes who you want to make decisions for you and the pecking order of those decision makers, people who you would not want in charge are given priority by the law.

As it stands now, the law establishes the following priority: 1. The spouse if not legally separated from the patient, or the domestic partner, 2.  A child 18 years or older, 3. A parent; 4.  A brother or sister, and 5.  A close friend.

Several of these categories have the potential for conflict. For instance, spouses may be on the verge of divorce but not legally separated, domestic partners if not registered or able to prove quickly that they qualify by other means may not be the top contender.

If Not For Yourself, For Your Family

So, the priority in a circumstance where a decision has to be made quickly really ought to be delineated in a health care proxy – where it is clear who you want and the order of successor agents. You should also discuss with your agent the types of medical decisions you would make and clarify whether they feel they can advocate for your wishes. The healthcare proxy is your opportunity to make your wishes known and will save your loved ones a lifetime of wondering if they did the right thing.

Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
901 Harvard Court, Suite A
Woodmere, New York 11598
Phone: 516.374.0074