Default Health-Care Surrogate Priority in New York

At a glance

Requirements one by one

When the default route opens

N.Y. Pub. Health Law § 2994-c(2) calls for an attending practitioner's determination of incapacity to a reasonable degree of medical certainty. Section 2994-b(2) first requires reasonable efforts to find a health care agent; an agent's decisions take priority. Under § 2994-d(3)(b), surrogate authority begins only after the capacity finding and surrogate identification and ends when the practitioner finds capacity restored.

Care or setting covered

Section 2994-b(1) covers health care provided in a hospital and hospice decisions regardless of the decision or care location. Subdivision (1-a) separately reaches DNR orders for patients in mental hygiene hospitals. The same section directs special checks for some patients with intellectual or developmental disabilities before using this Act.

Family and partner order

Section 2994-d(1) ranks an authorized Article 81 guardian, spouse who is not legally separated or domestic partner, adult child, parent, adult sibling, then close friend. Its opening rule selects one person from the highest class with someone reasonably available, willing and competent. A person in that class may designate another listed person unless someone in a higher class objects.

Friend or other nonfamily person

Section 2994-a(4) defines a close friend to include an adult friend or a relative outside the named family classes who knows the patient's activities, health, and religious or moral beliefs through regular contact. The person must present the attending practitioner a signed statement to that effect.

Who is available and eligible

Section 2994-d(2) generally disqualifies hospital operators, employees, privileged clinicians, and contracted providers for their patients, with exceptions for family relationships and friendships predating admission. A clinician who does serve as surrogate may no longer act as the attending practitioner.

Decisions limited or excluded

Section 2994-d(4) requires decisions to follow reasonably ascertainable patient wishes or, otherwise, best interests. Subdivision (5) sets separate clinical findings for withholding or withdrawing life-sustaining treatment: an extraordinary burden with terminal illness or permanent unconsciousness, or an inhumane or extraordinary burden with an irreversible or incurable condition. Some residential facility decisions and contested general-hospital nutrition decisions require ethics committee or court review under § 2994-d(5)(b)–(c).

No surrogate or disputed authority

N.Y. Pub. Health Law § 2994-g distinguishes routine, major, and life-sustaining decisions when no surrogate is reasonably available, willing or competent; the attending practitioner may decide routine care, while major care requires independent concurrence. Under § 2994-m(2), the ethics review committee can advise and help resolve disputes. N.Y. Pub. Health Law § 2994-r(2) permits a court to designate a listed person regardless of rank, or remove a surrogate on stated grounds.

What trips people up

An adult child or sibling does not automatically collect votes from every relative at that rank: § 2994-d(1) names one person. The Act's ordinary hospital scope does not make every community treatment decision a surrogate decision; the separate hospice route is broader under § 2994-b(1).

Common questions

Can a friend serve when family cannot? Yes, if the friend qualifies under § 2994-a(4), presents the signed statement, and no higher-priority class has a reasonably available, willing, competent person under § 2994-d(1).

Can a court choose someone lower on the list? Section 2994-r(2) permits it when the court finds that choice best fits the patient's wishes or, if unknown, best interests.

Statutes and sources

• N.Y. Public Health Law §§ 2994-a, 2994-b, 2994-c, 2994-d, 2994-g, 2994-m, and 2994-r. Verbatim official excerpts, section links, and access dates appear in the source fields above.