When Decisions by Authorized Representatives are Not in the Patient’s Best Interest

By Sarah Chussler, Esq.
Tuesday, February 13, 2018
Category: 

Sarah Chussler, Esq.

Ideally, when treating incapacitated patients, physicians can rely upon the healthcare decisions of authorized representatives. Said representatives are either agents appointed by the patient to make medical decisions pursuant to a Healthcare Proxy (HCP) or surrogates authorized to act pursuant to the Family Health Care Decisions Act (FHCDA). The patient’s representative must make decisions in accordance with the patient’s wishes, and if those wishes are not reasonably known, they must make decisions that are in the patient’s best interests. Unfortunately, situations arise when the representative ignores medical advice and makes decisions that are not in the patient’s best interests. Whether due to a lack of understanding, a lack of appreciation or a disregard of medical advice, this can create an ethical dilemma for physicians.

Fortunately, legal recourse is available. If the patient objects to an agent’s decisions and has not been determined by a court to be incapacitated, the patient’s decision prevails. If the patient is unable to object, New York State’s Mental Hygiene Law and the Public Health Law permit a court to revoke a valid HCP and appoint a guardian or override an agent’s decision. Similarly, the law authorizes the appointment of a guardian to make medical decisions for the patient, who has priority over a family member acting as a surrogate under FHCDA.

Only a court has the power to revoke an HCP or appoint a guardian, which is accomplished through a special proceeding. This may be commenced by a family member, close friend or healthcare provider. The revocation of the agent’s authority and the appointment of a guardian at the same time is a common request. When the patient’s best interests are questioned, the court may revoke the HCP if proven that the agent is either unwilling to act, not competent to fulfill their obligations or has acted in bad faith. Pursuant to the Mental Hygiene Law, a court can also revoke the HCP with sufficient evidence that the patient executed said document while incapacitated.

In practice, if a patient unequivocally expresses their wishes while competent and the agent fails to adhere to those wishes the court will revoke the HCP. If it is alleged that an agent is not acting in the patient’s best interests, the court must determine whether the agent’s conduct rises to the level of incompetence or bad faith. Refusal to consent to a medically recommended procedure may not necessarily constitute bad faith. Likewise, speculation as to a patient’s wishes or the hope that one treatment plan will be more beneficial is insufficient to override an agent’s decisions. Instead, courts have opined that an agent’s decisions that negatively impact the patient’s health and well-being warrant the revocation of an HCP.

In assessing the patient’s best interests, the patient’s dignity and uniqueness, the ability to preserve their life, the improvement of their health, and relief of their suffering must be considered. When these factors are ignored, judicial intervention may be sought for the removal of the patient’s representative. The determination of the best interests must be patient-centered with a focus on the patient’s wishes, their religious and moral beliefs, and on a case- by-case basis.


Sarah Chussler handles estate proceedings, Article 81 guardianship proceedings and Fair Hearings that challenge inadequate Medicaid determinations at Miller & Milone, P.C. She received her Juris Doctor from the University Of Miami School of Law and is licensed to practice law in the state of New York. Chussler is a member of the New York State Bar Association, Elder Law and Special Needs Section, and is a member of the Nassau County Bar Association.