Richard, an 81 year-old widower, has had his Will and advanced directive documents (Power of Attorney, Health Care Proxy and Living Will) in order for some time. His daughter, Beth, was named his Health Care Agent in his health care proxy. Of his children, she lived the closest and often accompanied him to doctors’ appointments related to a chronic heart condition.

One evening after work, Beth stopped by her father’s house to visit. When she arrived, she found him lying on the floor – unconscious and unresponsive, but still breathing. Beth called 911 immediately. When EMS arrived, she asked that Richard be transported to Hospital B, which was 10 minutes away, but well-known for its cardiology unit. EMS workers informed Beth that Richard would be transported to Hospital A which was closer, at only 6 minutes away. Beth showed them her father’s Health Care Proxy (HCP), pointed out that she was the appointed Health Care Agent, and demanded they take him to Hospital B. The EMS workers again refused, and transported Richard to Hospital A.

Although court decisions clarify that a properly executed Health Care Proxy has force outside of the hospital setting, the relevant New York statutes provide that a Health Care Agent’s authority to make health care decisions does not begin until a determination is made “in writing” by the “attending physician” that the person has lost the capacity to make health care decisions. Given the facts of Richard and Beth’s situation, the EMS workers would claim they were not obligated to follow Beth’s directives because an attending physician had not yet determined that Richard lost the capacity to make his own health care decisions, even though he was clearly unresponsive.

Once Richard arrived at the hospital, and a physician determined he was unable to make decisions for himself, Beth’s authority to make health care decisions for Richard would clearly begin. At that time, Beth would be able to make decisions limited to the authority granted to her in Richard’s HCP, and in furtherance of Richard’s wishes that had previously been conveyed to her, either personally or in writing via the HCP, Living Will and/or similar document(s). However, there remains uncertainty in the law as to Beth’s authority to make health care decisions in the above scenario where a determination of incapacity has not been made by a physician. Nevertheless, it is a good idea to include a provision in the Health Care Proxy specifically authorizing the agent to make decisions on behalf of the principal in situations where the principal is clearly unresponsive, even if a determination of incapacity has not been made by a physician.

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Michael Giannasca and Brian Miller are attorneys with the law firm of Giannasca & Shook, PLLC. The Elder Law & Estate Planning Group of the firm handles all aspects of Elder Law including wills & probate, trusts & estates, Medicaid planning, guardianships, estate administration and litigation, and asset protection. Mr. Giannasca and Mr. Miller are members of Elder Counsel, the National Academy of Elder Law Attorneys, the Elder Law and Special Needs Section and Trusts and Estates Law Section of the New York State Bar Association and the Trusts & Estates Section and the Elder Law Committees of the Westchester County Bar Association; 1 Barker Avenue, Suite 325, White Plains, NY 10601; 914-872-6000.