Decision-Making by Agents: Standards for Agents' Decisions

The agent must decide about health care in accordance with the patient's wishes, including the patient's religious and moral beliefs. If the patient's wishes are not reasonably known and cannot with reasonable efforts be determined, the agent must decide based on a judgment about the patient's best interests. The one exception to this rule is a decision about artificial nutrition and hydration. If the patient's wishes about artificial nutrition and hydration are not reasonably known and cannot with reasonable efforts be determined, the agent cannot decide about these measures.

Access to Information

Health care agents have the right to receive medical in–formation and records necessary to make informed health care decisions for the patient and to weigh the risks and benefits of treatment alternatives.

Before making any health care decision, the agent must consult with a licensed physician, a registered nurse, a licensed clinical psychologist or a certified social worker.

What if a family member objects to the agent's decision? Does the agent or facility have to go to court?

No. The agent's decision prevails and must be honored unless the objecting family member or the facility obtains a court order overriding the decision or disqualifying the agent.

Must the agent have "clear and convincing evidence" of the patient's wishes in order to consent to withdraw or withhold life–sustaining treatment?

No. Reasonable knowledge of the patient's wishes is sufficient. In addition, if no such evidence is available, the agent can consent to forgo life–sustaining treatment if he or she makes a good faith judgment that forgoing treatment is in the patient's best interests, except for a decision about artificial nutrition and hydration. To decide about artificial nutrition and hydration, the agent must have reasonable knowledge of the patient's wishes.

Must evidence of the patient's wishes about artificial nutrition and hydration be written on the Proxy form?

No. There is no requirement that this evidence be written on the proxy form or elsewhere. The agent's knowledge can be based on prior oral statements by the patient and knowledge of the patient's religious, moral and personal beliefs about health care.

What if the agent's decision appears to conflict with written instructions by the patient on the proxy form or elsewhere?

Health care professionals should honor the agent's decision if they believe the agent is not violating the patient's wishes, but is interpreting the patient's wishes in good faith in light of available medical information and circumstances.

Must the agent sign a special consent form in order to make treatment decisions?

No, but like a patient with capacity, the agent may be asked to provide written consent to treatment.

Can the agent decide about cardiopulmonary resuscitation?

Yes, unless the patient or the proxy form expressly states that the agent cannot decide about CPR, the agent is authorized to do so, and will have the same authority to decide about CPR as a competent patient would have. The rules of the Proxy Law, not New York's do–not–resuscitate (DNR) law, apply to the decision.

Must two adults witness oral consent by the agent to an order not–to–resuscitate?

Yes, because this requirement applies to decisions by competent patients under the DNR law.

Must physicians determine that patients have particular medical conditions, such as terminal illness, in order for agents to decide about CPR or other treatments?

No, the agent has the same authority as a competent patient.

Can the agent decide about autopsy?

No, unless he or she is otherwise authorized to do so.

Is the agent entitled to examine confidential information in the Patient's medical record, such as information that the Patient has AIDS?

Yes, the agent should receive the information necessary to make an informed decision about the patient's health care.

What are the agent's obligations under the law?

The agent must make decisions in good faith that are consistent with what the patient would have chosen or with the patient's interests. The agent must consult health care professionals before making health care decisions.