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By Ronald A. Fatoullah, Esq. and Lian Kuang, Esq.

On October 5, 2012, a New York Appeals Court ruled in support of SungEun Grace Lee (Grace), a 28 year old banker who wanted to be taken off life support and allowed to die. Grace, who has terminal brain cancer, is paralyzed from the neck down and is being kept alive by artificial means. Her family disagreed with her decision and petitioned for guardianship to make health care decisions on her behalf. They argued that she was incapacitated due to her medicated state. The issue of an individual’s right to die is complex, to say the least. While the law does not permit assisted suicide, a patient always has the right to refuse medical treatment. This may include the refusal of life-sustaining treatment which could lead to death. Proper planning and possessing the necessary legal documents can help to enforce our right to refuse medical treatment. In addition, having the proper legal documents can help avoid or minimize conflict between loved ones when the difficult decision pertaining to “pulling the plug” arises.

Health care decisions, including decisions regarding life-sustaining treatments, are made by the individual patient. The issue presented in the case of Grace (and the famous Terri Schiavo right-to-die case), is one in which the capacity of the patient to make such decisions is questionable. In New York State, once a person is deemed incapable of making health care decisions, these decisions can be made by an appointed agent under a duly executed Health Care Proxy.

Planning for health care decision-making, in the event of incapacity, is not an easy process. It is often the most difficult process for our clients who are engaged in elder law planning. The issue requires individuals to delve into grim and morbid topics of illness and whether or not to “pull the plug” and in which scenarios to do so. Understandably, individuals often avoid signing a Health Care Proxy or sign a Health Care Proxy without having an informed discussion with their appointed agent. Having a Health Care Proxy allows one to choose the person he/she trusts to speak on his/her behalf and ensure that one’s rights and wishes are upheld. The discussion about one’s wishes regarding health care decisions is as important as naming the person to make these decisions. Again, the discussion ensures that decisions are made based on the individual’s expressed wishes. It avoids or minimizes conflict that can lead to litigation as in the cases of Grace and Schiavo. It also lessens any guilt on the part of the agent who may have to make the decision about whether or not to withhold or withdraw life-sustaining treatment. Most importantly, the law requires clear and convincing evidence of an individual’s wishes before an agent can have the authority to withdraw or refuse life sustaining treatment. Therefore, having a serious and in-depth discussion with the appointed agent and any successor agents is a vital part of the process of executing a Health Care Proxy.

As of 2010, if an incapacitated person has not appointed an agent under a Health Care Proxy, the Family Health Care Decisions Act (FHCDA) authorizes a surrogate from a prioritized list of individuals to make health care decisions for the incapacitated person. However, relying on the FHCDA is not recommended. One reason is that the FHCDA is only available to individuals who are in a hospital, residential care facility, or in hospice care. Oftentimes an incapacitated person will remain living at home and consequently the FHCDA does not apply. In cases in which the FHCDA is in effect, the surrogate chosen from the list of individuals provided under the FHCDA may not be the person who would have been entrusted with the incapacitated person’s health care decisions. Also, conflict can arise between multiple individuals who may have the same priority under the list, such as multiple children or siblings.

Whether or not we currently feel strongly about our right to live or die, having a properly executed Health Care Proxy is strongly recommended to ensure that our wishes are upheld and to avoid or minimize conflict between our loves ones.

Ronald Fatoullah is a leading expert in the fields of elder law & estate planning. He is the founder and managing attorney of Ronald Fatoullah & Associates, a law firm concentrating in elder law, estate planning, Medicaid eligibility, special needs, trusts, guardianships, & probate. He is certified as an elder law attorney by the National Elder Law Foundation, and he is the current Legal Committee Chair of the Long Island Alzheimer’s Association. The firm’s offices are conveniently located in: Long Island, Queens, Manhattan & Brooklyn and can be reached at: 1-877-Elder Law 1-877-Estates. This article was written with the assistance of Lian Kuang, Esq., an elder law attorney with the firm. Ms. Kuang speaks Mandarin and Cantonese and also assists with Ronald Fatoullah & Associate’s Chinese speaking clients


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