Healthcare Decisions for Incapacitated Patients by Surrogates

By Thomas Manzi
Tuesday, December 19, 2017
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Thomas Manzi

As stated by Justice Benjamin Cardozo in 1914, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” Today, the Doctrine of Informed Consent requires that a patient have enough information regarding the proposed treatment that they can make a reasonable decision regarding treatment. In practice, a physician should provide a patient with the nature and purpose of the treatment, the possible risks and benefits of the treatment, any alternative treatments available, and the risks and benefits of forgoing the treatment. While informed consent is routinely requested and granted without issue in the vast majority of interactions between medical providers, the issue can be complicated when the patient lacks capacity.

In cases where a patient lacks capacity to make a reasonable decision, informed consent cannot be given by the patient but instead must be granted by another party. In most cases, physicians rely upon a Health Care Proxy (HCP) appointed by the patient or by a surrogate authorized to act pursuant to the Family Health Care Decisions Act (FHCDA) to provide informed consent.

New York state law allows an individual to appoint a proxy to make medical decisions in the event of incapacity. In order to be valid, the form must be signed by the patient and two witnesses prior to incapacity. While the form typically grants broad authority to make decisions, the proxy must make decisions according to the patient’s wishes. When a proxy makes decisions that other parties, such as family members, disagree with, the authority of the proxy can be challenged. In order to address this issue, patients often draft a living will, which attempts to clarify the wishes of the patient. However, in practice, living wills typically fail to address every possible situation, and disagreement can undercut the power of the proxy. Before acting upon the informed consent of a proxy, a physician should discuss and document the proxy’s basis for the decision and, if necessary, confer with any objectors.

The FHCDA authorizes a guardian, spouse, adult son or daughter, adult sibling or close friend to act as surrogate when no proxy was appointed. While the statute provides a mechanism to appoint a surrogate after incapacity occurs, it can lead to several problems in large or conflicted families. For example, in the case where a patient has multiple adult children who disagree on the patient’s wishes, the statute does not provide a mechanism for appointing one child over the others. Unlike an HCP, which limits a surrogate to making decisions based upon the patient’s known wishes, the FHCDA does allow a surrogate to make decisions in accordance with the patient’s best interests if the patient’s wishes are not reasonably known and cannot with reasonable diligence be ascertained. In determining the best interests of a patient, the surrogate should be instructed to consider the dignity of the patient, preservation of life, improvement and restoration of health, and relief of suffering. Pursuant to the FHCDA, a surrogate may only refuse life-sustaining treatment if the patient is terminally ill, permanently unconscious, or is suffering from an incurable condition to which life sustaining treatment would pose an unacceptable burden.

Whenever a physician relies upon a surrogate to grant informed consent, it is important to document not only the authority for that consent, but the reasoning for the surrogate’s decision to ensure that medical decisions are made in accordance with the incapacitated person’s wishes and best interests.


Mr. Manzi handles Social Security disability appeals, veterans benefits, Article 81 guardianships and estate proceedings. He received his JD from Hofstra University School of Law and is licensed to practice in New York. Prior to attending law school, Mr. Manzi served in the United States Army and volunteered as a firefighter and EMT-CC in Suffolk County.