Imagine your spouse whom you want to divorce making health care decisions that could affect your very life! Farfetched, not really. If you were to become mentally incapacitated and therefore unable to make health care decisions on your own, New York would look to your spouse to make those decisions for you. N.Y. Public Health Law §2994-d. According to N.Y. Public Health Law, your spouse or domestic partner is first on the list of surrogates that a hospital would look to for
decisions on your medical care and treatment, followed next by any children you may have over the age of eighteen years, followed thereafter by your parents, then your siblings and finally your close friend. N.Y. Public Health Law §2994-d(1)(b) though (f). According to that statute, unless you and your spouse were legally separated, your spouse would have the legal authority to “make any and all health care decisions on the adult patient’s behalf that the patient could make.” N.Y. Public Health Law §2994-d(3)(a)(i).
This means that if you and your spouse were in the midst of a divorce and not legally separated, and you were no longer capable of making these decisions, unless some family member or close friend ran to court for judicial relief (i.e., guardianship proceeding under Article 81 of the Mental Hygiene Law), odds are that you would be left at the mercy of your estranged spouse to make these life and death decisions for you. This would be especially true if you suffered a sudden calamity such as a car accident and no friend or family member knew about it. When time is measured in seconds, the hospital is not obliged to run to court when a spouse, even an estranged spouse, is present and willing to make these vital health care decisions for you.
The scope of your spouse’s authority over your health care would include the right to make a decision concerning withholding or withdrawing life-sustaining treatment. N.Y. Public Health Law §2994-d(5). Before life support can be refused or withdrawn, a physician with the concurrence of another physician would have to determine that you are either (a) permanently unconscious (i.e., persistent vegetative state) or (b) likely to die in six months whether or not treatment is provided. N.Y. Public Health Law §2994-d(5)(a)(i).
This is especially true if you had previously appointed your spouse in a health care proxy during better times. Until revoked by you with a new health care proxy or until a final judgment of divorce or a legal separation (meaning a court has signed off on it) was entered, your estranged spouse, even during the pendency of a divorce proceeding, could conceivably make health care decisions affecting your very life should you become incapacitated and unable to make those decisions on your own. N.Y. Public Health Law §2985(1)(e). That statute specifically states the following:
The appointment of the principal's spouse as health care agent shall be revoked upon the divorce or legal separation of the principal and spouse, unless the principal specifies otherwise.
N.Y. Public Health Law §2985(1)(e).
Consider the predicament of Terri Schiavo, who at the time she had lapsed into a coma, did not leave any written instructions as to what should be done for her medically in case she were to become disabled. At the time she had become comatose, she was married and living with her husband, Michael. Diagnosed years later as being in a persistent vegetative state, Michael Schiavo who was still legally married to her, but now living with another woman with whom he had fathered two children, wanted to “pull the plug” against the wishes of Terri Schiavo’s parents. Because he was still married to her, Florida, as would New York, allowed her estranged husband, Michael Schiavo, to make all her health care and, ultimately, the end of life decision because there was no health care proxy designating someone else to make these decisions or a living will which could have clearly stated a contrary wish for continued treatment.
Unless your wishes are clearly stated (living will) or you have designated someone you want in a health care proxy to make these decisions, all that is required of the surrogate spouse when making health care decisions that could affect your life is that they be made “in accordance with the patient’s wishes, including the patient’s religious and moral beliefs. . . .” N.Y. Public Health Law §2994-d(4)(a)(i). If your wishes are not known (no health care proxy or living will) or cannot be reasonably ascertained, then all the law requires is that the surrogate’s decision be “in accordance with the patient’s best interests”. N.Y. Public Health Law §2994-d(4)(a)(ii). What the best interests of the patient are is determined as follows:
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.
N.Y. Public Health Law §2994-d(4)(a)(ii).
If the above-quoted language is the benchmark standard that the law applies to determine whether “pulling the plug” is in your best interests, consider if you were comatose. You could conceivably bet your very life that a hospital would side with your estranged spouse who was acting as your surrogate that terminating life-support would be in your best interests especially if your medical insurance was about to run out. Would you want your estranged spouse making those life and death health care decisions for you instead of a trusted family member or close friend?
To avoid a Catch-22 situation in which your estranged spouse would be empowered by law to make these health care decisions for you if you could no longer make them on your own, the easiest thing to do is to sign a health care proxy and appoint whomever you want to make these decisions for you. This is something you can do on your own without an attorney simply by clicking on to the link to New York’s “Health Care Proxy” or going to the “Useful Links” section at the top of our website and scroll down to and click on to "Health Care Proxy". Remember, you will need two people to witness your signature at the time you sign the health care proxy. Once you have done this, give the original proxy to whomever you designated and give a copy to your doctor to be included in your medical files.
Should you decide to consult an attorney, at Doniger & Engstrand, LLP, as part of the Estate Planning work that we do, we draft Health Care Proxies as well as more sophisticated living wills. A living will sets forth in writing what you would like to have done medically should any number of various calamities befall you in the future that would render you disabled. Unfortunately, even the best drafted living wills cannot cover every conceivable event. Therefore, even with a living will it is wise to have a Health Care Proxy in place to fill in where a living will might leave a void.
By combining our experience in matrimonial law with estate law, we can help you draft your intentions so that your wishes with respect to the medical care and end –of-life decisions that you would like to have made for you during that most critical time when you can no longer make them for yourself will be honored and not left to the uncertain vagaries of someone who might not have your best interests at heart.