Hello and thank you for your question.
If a person is "legally dead," then life support by definition won't work for them.
"An individual who has sustained either:
Irreversible cessation of circulatory and respiratory functions; or
Irreversible cessation of all functions of the entire brain, including
the brain stem, is dead."
Clinical Guidelines for the Determination of Death
http://www.health.state.ny.us/nysdoh/bsd/guidelin.htm
But a comatose patient isn't dead, because their heart is beating and
their brain is functioning, even though a feeding tube and other life
support is needed to prevent them from dying. So I believe your
question is:
"In New York, assuming there is no health care directive signed by the
patient, can a comatose patient [who is without family] be represented
by a conservator, legal guardian, or some other agent at whose
direction the feeding tube can be removed, resulting in death?"
The answer is "no."
New York stands alone with Missouri as a state where the courts have
specifically held that family members cannot refuse life-sustaining
treatment for incapacitated patients. Like the Missouri Supreme Court
in the case of Nancy Cruzan, the New York Court of Appeals has held
that life-sustaining measures can only be withdrawn based on "clear
and convincing evidence" of the patient's wishes.
http://bioethic.bfn.org/factsheet.html
In New York, the presence or absence of a family member who is
familiar with the patient's wishes doesn't really matter. In New York
the same standards will apply whether or not the patient has any
family.
"At present, New York law does not permit the withdrawal or
withholding of life-sustaining treatment from an incapacitated adult
patient who has neither created a health care proxy nor left written
or oral treatment instructions that satisfy the clear and convincing
standard."
http://www.health.state.ny.us/nysdoh/consumer/patient/chap4.htm
If a health care proxy (duly signed by the patient) exists, the agent
named in the proxy can speak for the patient and, in most cases, have
the life-sustaining measures terminated.
http://www.health.state.ny.us/nysdoh/consumer/patient/hcproxy.htm#respond
But in the absence of a signed health care proxy, and regardless of
whether there are family members, the feeding tube, etc. must remain
in place.
The resource cited above,
http://www.health.state.ny.us/nysdoh/consumer/patient/chap4.htm
and the other chapters [just change chap4 to chap1 and so on]
does a good job of explaining these issues.
Search terms used:
cruzan "new york state"
"right to die" comatose "new york
I hope you find this information useful.
Sincerely,
Google Answers Researcher
Richard-ga |
Request for Answer Clarification by
jonboke-ga
on
25 Feb 2005 16:16 PST
This is a great answer and very helpful, but I'm still unclear about
the first part of my question, "Who cares for this person? Do they
become a ward of the state?" I know if someone is missing for seven
years, that someone is considered to be 'legally dead'. If you are in
a coma for seven years, who is responsible for your care during that
time? The hospital? The insurance company? In simplest terms, I'm
asking this:
Since this patient is being kept alive, don't they become a ward of
the state after a certain period of time?
Thank you for the help.
|
Clarification of Answer by
richard-ga
on
25 Feb 2005 17:33 PST
Hello again
Ward of the State isn't really the proper term. New York uses the
term "Guardian." And yes, someone in the situation you describe would
be appointed as the patient's guardian.
"The petition may be made by the allegedly incapacitated person (AIP),
a presumptive distributee, the trustee of trust for the benefit of or
set up by the AIP, the person with whom the AIP resides, "a person
otherwise concerned with the welfare of the person alleged to be
incapacitated" or the facility at which the AIP is a resident."
http://www.mhllaw.com/article-03.htm
The guardian's job would be to monitor the quality of care they were
getting, make sure the insurance company was making proper payments,
and invest/protect any money of the patient. In theory the guardian
might try to get a court to order the person's life support taken away
if the guardian thought that was in the person's best interest, but as
I explain in my answer, any such request would be denied.
Here is some information on the guardian's role:
http://www.mhllaw.com/article-03.htm
http://www.otda.state.ny.us/directives/1992/INF/92_INF-40.pdf
http://www.nycourts.gov/supctmanh/Fiduciary%20Orders.htm
Does that help?
-R
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