Challenging the Agent's Decisions

Health care facilities, professionals, family members and others authorized by the Proxy Law can seek a court order to override the agency decision or to disqualify the agent. Grounds for a court challenge include:

  • the proxy document is fraudulent or invalid;
  • the agent is incompetent or unwilling to serve, or is acting in bad faith; or
  • the agency decision is inconsistent with the patient's wishes, or, if reasonable evidence of the patient's wishes is unavailable, with the patient's best interests.

Should the facility honor the agent's decision if a member of the patient's family objects?

If the agent's decision was made in good faith and in accordance with the standards in the law, the facility should honor the agents decision unless the objecting family member obtains a court order.

If a person on the surrogate list in New York's do–not–resuscitate law objects to a decision about CPR by the health care agent must the dispute be mediated?

No. When the health care agent decides about CPR, the procedures of the Proxy Law apply. The agent has the sole authority to decide about CPR, unless the patient or a court declares otherwise.

If a patient has a court appointed conservator, committee or guardian, can the agent make medical decisions when the patient loses capacity?

Yes. If the patient was competent at the time the proxy was created, the agent has priority over any other person except the patient.

Can public hospitals refuse to honor the agent's decisions based on the Proxy Law's institutional conscience exception?

No.

Can a private hospital or an individual health care professional refuse to honor the agent's decision because the decision was made by the agent and not the patient?

No. The Proxy Law does not permit conscience objections based solely on the use of a health care proxy or the fact that an appointed agent makes a treatment decision.

What if the facility does not inform the patient or family, prior to or upon admission; of objections on religious or moral grounds to certain treatment decisions?

If it was reasonably possible to provide the information prior to or upon admission, and the facility fails to do so, the facility cannot refuse to honor the agent's decision on the grounds of religious or moral conviction.