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N Cal Attorney
N Cal Attorney, Attorney
Category: Estate Law
Satisfied Customers: 9312
Experience:  Since 1983
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This is pertaining to New York Public Health Law so, a NY

Customer Question

This is pertaining to New York Public Health Law so, a NY probate attorney would be the most appropriate person to respond. My brother who was my Dad's health care proxy made him a DNR and decided to withhold life-sustaining treatment per Dad's living will. My Dad is now deceased. I have looked at the New York Public Health Law § 2983 - Determination of lack of capacity to make health care decisions for the purpose of empowering agent. My understanding, as a legal layperson, indicates that before life-sustaining treatment CAN BE withheld, two MD's must sign a letter of incapacity. According to Dad's chart, that was not done until way after he was getting only palliative care. My brother, even as health care proxy, had, again, in my opinion, no right to stop treatment until that letter was signed. Was he in violation of his health care proxy obligation when he halted all treatment before my Dad was LEGALLY declared incompetent. In the eyes of the law did he have the power to do that? With Many Thanks to You, Lucy
Submitted: 9 months ago.
Category: Estate Law
Expert:  N Cal Attorney replied 9 months ago.

I am sorry to hear this.

You mentioned that your father had signed a living will. Was it on this form?

Customer: replied 9 months ago.
No. Here is a copy if his living will. I do not have a copy of the HCP. I cut out the names. I hope that is ok. Luvy
Customer: replied 9 months ago.
D*mn, I like that one better. It is more specific where Dad's is vague. Not sure that is a good thing.
Expert:  N Cal Attorney replied 9 months ago.

Yes the form I linked to is more complete, but is not required. Did the witnesses sign and date the document in the presence of each other and your father? Was the document notarized?

Customer: replied 9 months ago.
I was not there but the lawyer is by the book. I just looked, it does not have to be notarized in New York State. I am curious why you are concentrated on the living will vs. the health care proxy. No offence, just curious.
Expert:  N Cal Attorney replied 9 months ago.

Because my opinion is that the living will appears to be valid, see pages 8-9 of

https://www.ag.ny.gov/sites/default/files/pdfs/publications/Planning_Your_Health_Care_in_Advance.pdf

and if the doctors determined that he was terminal they were allowed to follow his instruction as stated in the living will regardless of whether or not there was a health care proxy.

The standard health care proxy form states:

"Your health care agent would begin to make health care decisions after your doctor decides that you are not able to make your own health care decisions."

PBH 2983 is a general law that applies even when there is no living will as long as there is a health care proxy or agent. Aside from any issue of the authority of the proxy, I do not see how the doctors can be faulted for complying with the wishes of their patient as expressed in the living will you showed me. He wrote he did not want to be kept alive by artificial means and if that was all that was keeping him alive, the doctors had the right to discontinue them.

2983 only requires one signature and a consultation with another MD:

"1. Determination by attending physician.  (a) A determination that a principal lacks capacity to make health care decisions shall be made by the attending physician to a reasonable degree of medical certainty.  The determination shall be made in writing and shall contain such attending physician's opinion regarding the cause and nature of the principal's incapacity as well as its extent and probable duration.  The determination shall be included in the patient's medical record.  For a decision to withdraw or withhold life-sustaining treatment, the attending physician who makes the determination that a principal lacks capacity to make health care decisions must consult with another physician to confirm such determination.  Such consultation shall also be included within the patient's medical record."

You wrote: "My brother, even as health care proxy, had, again, in my opinion, no right to stop treatment until that letter was signed." I agree that you are correct about that, but the doctors may have acted legally based on the living will and not the instructions of the health care proxy. I am not sure why they did what they did and I could not even try to determine that without seeing the medical records.

If you file a probate case and get the Court to appoint you as administrator or executor, you can get the medical records and see if the doctors complied with the requirements of 2983, or if the decision was just based on the living will.

You can get a free consultation from some of the NY probate attorneys listed by location here.

Please follow up on this with a local attorney.

I hope this information is helpful, and I am sorry for your loss.

Customer: replied 9 months ago.
I am not blaming the doctors. What you have to understand is that my Dad was NOT terminal. He did have dementia and was hospitalized with delirium; a reversible condition. My brothers pounced on his hospital admission and my older brother made him a DNR without every laying eyes on him THE DAY AFTER he was diagnosed. He stopped his enteral feeds knowing full well that Dad was not conscious enough to eat. He was going thru the "sleeping phase" of delirium. His treating physician said he may get better and plateau OR this could be the end. By refusing treatment my brother set him up to fail. HE WAS NOT TERMINAL!
Customer: replied 9 months ago.
34;If there is no reasonable expectation of my recovery..." is the standard. Delirium is treatable but denying him treatment made his recovery impossible. The nursing home staff were disgusted that my brothers would not let me feed him. If he did not eat for the staff, he did without. Dehydration and poor nutrition made his condition worse and wax probably the cause of his severe bed sore. They gave up on Dad and they killed him.
Expert:  N Cal Attorney replied 9 months ago.

Thank you for the additional information. If you are correct, the doctors committed malpractice Feeding and hydrating an unconscious patient is standard procedure, and not a "heroic measure".

I think you should get the medical records and consult one of the malpractice attorneys listed by location here.