What Is the Family Health Care Decisions Act in NY?

The Family Health Care Decisions Act in NY is a state law that lets a spouse, family member, or close friend make medical decisions for a hospital, nursing home, or hospice patient who has lost the ability to decide for themselves and never signed a health care proxy or had a guardian appointed. It took effect on June 1, 2010, and closed a long-standing gap in New York law: before the FHCDA, families often had no clear authority to consent to or refuse treatment for an incapacitated relative without going to court.1New York State Department of Health. Fact Sheet: Family Health Care Decisions Act and HIV/AIDS

Where the Law Applies

The FHCDA governs decisions made in hospitals, nursing homes (the statute calls them “residential health care facilities”), and hospice.2NYSBA. NY Family Health Care Decisions Act NY Public Health Law Article 29-CC Hospice patients are covered wherever they receive care, including at home.

It does not apply to everyone. If the patient already signed a health care proxy, that document controls and the FHCDA steps aside. The law also does not reach patients with a guardian appointed under Article 17-A of the Surrogate’s Court Procedure Act, or patients whose treatment falls under rules from the Office of Mental Health or the Office for People With Developmental Disabilities.3New York State Senate. New York Public Health Law 2994-B The attending practitioner has to check for those alternatives before using the FHCDA’s surrogate process.

How a Patient Is Found to Lack Capacity

Every adult is presumed capable of making their own medical decisions. No one else can step in until a clinician formally determines otherwise and documents it.4New York State Senate. New York Public Health Law 2994-C

The attending practitioner, which can be a physician, nurse practitioner, or physician assistant with primary responsibility for the patient, evaluates whether the patient can understand the medical information, weigh how it applies to their situation, and communicate a decision. If the practitioner concludes the patient lacks capacity “to a reasonable degree of medical certainty,” they must also note the cause, the extent, and whether capacity is likely to return.

A second, independent evaluation is required in some situations. In nursing homes, a concurring determination from a qualified health or social services practitioner is always needed. In hospitals, the second opinion is required when the surrogate’s decision involves withdrawing or withholding life-sustaining treatment. Registered nurses, psychologists, licensed clinical social workers, and licensed master social workers can provide the concurrence within their scope of practice, in addition to physicians.

Capacity can also come back. If the patient regains the ability to decide, their own authority is immediately restored and the surrogate’s role ends. A patient also keeps the right to object: if they protest the incapacity finding, the choice of surrogate, or a specific decision, that objection prevails unless a court finds otherwise.

Who Becomes the Surrogate

The FHCDA sets a strict priority list. The highest-ranked person who is available, willing, and competent becomes the surrogate automatically. There is no court appointment:5New York State Senate. New York Public Health Law 2994-D

  1. A court-appointed guardian with authority to make health care decisions under Article 81 of the Mental Hygiene Law
  2. The patient’s spouse (unless legally separated) or domestic partner
  3. An adult son or daughter (18 or older)
  4. A parent
  5. An adult brother or sister (18 or older). Half-siblings and siblings by adoption count; step-siblings do not
  6. A close friend familiar with the patient’s values and preferences

Someone higher on the list can hand the role to someone lower, as long as no one in a still-higher class objects. A close friend who wants to serve must sign a written statement describing the relationship and their familiarity with the patient’s wishes. The “close friend” category can even include a relative who is not on the priority list, such as a cousin or aunt, if they can show that personal knowledge.

Hospital operators, administrators, employees, and physicians or other practitioners with privileges at the treating hospital generally cannot act as surrogate, unless they are related to the patient by blood, marriage, domestic partnership, or adoption, or were a close friend before admission.5New York State Senate. New York Public Health Law 2994-D If a treating physician does serve under one of those exceptions, they must stop acting as the patient’s attending practitioner.

How the Surrogate Must Decide

A surrogate can make any health care decision the patient could make, but the choices are bound by two standards:5New York State Senate. New York Public Health Law 2994-D

  • If the surrogate reasonably knows the patient’s wishes, including religious and moral beliefs, those wishes control.
  • If the wishes aren’t known and cannot be learned with reasonable effort, the surrogate decides based on the patient’s best interests, weighing dignity, the chance of preserving life, whether health or functioning can be improved, and the relief of suffering.

Decisions have to be about this specific patient. A surrogate cannot fall back on what people in similar situations usually choose. Providers must give the surrogate the diagnosis, prognosis, treatment options, risks, and benefits so the decision can be informed. If the patient previously expressed a decision about the proposed treatment (orally or in writing), providers can rely on that prior decision, but they still have to make reasonable efforts to notify the surrogate before acting on it.

Life-Sustaining Treatment: The Stricter Rules

When the surrogate wants to withdraw or withhold life-sustaining treatment, including accepting a hospice plan that stops such treatment, the general standards still apply, and one of two additional conditions must also be met:5New York State Senate. New York Public Health Law 2994-D

  • Treatment would be an extraordinary burden, and the attending practitioner, with the independent concurrence of another physician, nurse practitioner, or physician assistant, finds that the patient has an illness or injury expected to cause death within six months regardless of treatment, or that the patient is permanently unconscious; or
  • Continued treatment would involve pain, suffering, or other burden so severe that it would reasonably be considered inhumane, and the patient has an irreversible or incurable condition. A second practitioner must concur.

In nursing homes, the “inhumane burden” path requires an additional step: the facility’s ethics review committee has to review and approve the decision. Artificial nutrition and hydration get special treatment. A surrogate cannot direct their withdrawal without either a clear record of the patient’s wishes about that specific form of care, or compelling evidence that one of the thresholds above has been met.

Patients With No Family or Friends Available

Not every patient has someone to step in. Hospitals must try at admission to identify a health care agent, guardian, or at least one potential surrogate, and if no one is found, they must learn what they can about the patient’s wishes, values, and beliefs and chart it.6New York State Senate. New York Public Health Law 2994-G

What happens next depends on the treatment:

  • For routine treatment that doesn’t ordinarily require specific consent, the attending practitioner can authorize it directly.
  • Major medical treatment requires added procedural review under the statute.
  • Decisions to withdraw or withhold life-sustaining treatment carry the strictest oversight, since no one personally close to the patient is weighing in.

All of these decisions still have to be patient-centered, and the hospital’s financial interests cannot shape the outcome.

When Family Members and Doctors Disagree

Conflicts come up. Siblings disagree about a parent. A surrogate and the treatment team see things differently. The FHCDA requires hospitals and nursing homes to maintain ethics review committees that can hear these disputes and offer recommendations grounded in medical ethics, patient rights, and the statute’s standards. In practice, these committees resolve most disagreements before anyone files anything.

If mediation fails, either side can go to court. A provider who believes the surrogate is departing from the patient’s known wishes or interests can petition for a different decision-maker. A surrogate who believes a provider is wrongfully refusing to follow their instructions can seek judicial relief. Courts do not displace surrogates lightly; the role is legally recognized, and overriding it takes substantial evidence that the surrogate is not meeting the statutory standards.

Why a Health Care Proxy Is Still the Better Plan

The FHCDA is a safety net. It only kicks in when a patient has no health care agent and no guardian, and its priority list may not match who you would actually want speaking for you. A close friend who knows your values completely ranks below a sibling you haven’t talked to in years. A health care proxy, which is a short document naming the person you want to make medical decisions if you cannot, puts your choice in charge from the start and lets you record your wishes in advance. Signing one takes the FHCDA out of the picture entirely.1New York State Department of Health. Fact Sheet: Family Health Care Decisions Act and HIV/AIDS