The common law principle is well-settled that every individual of sound mind and adult years has a right to determine what should be done with his or her own body. The right to accept or reject medical treatment has long been recognized for competent adults. However, for individuals who lack capacity, this right was not always recognized, often times forcing individuals to be subjected to treatments that went against their beliefs and desires. Unfortunately, the imposition of unwanted medical treatment still happens today in the context of incapacitated patients who reside in hospitals and nursing homes due to an apparent conflict between limitations placed on the powers of a guardian in some court jurisdictions versus the standards set forth under the Family Health Care Decisions Act.
Signed into law in 2010, the Family Health Care Decisions Act (FHCDA) (N.Y. PUB. HEALTH LAW §2994-d) reflected a major departure regarding the standard under which life sustaining treatment may be terminated for a mentally incompetent person. The FHCDA flipped the switch from the prior “presumption of life” to a “presumption of termination” (absent indication from the principal to the contrary), and did so especially in the context of artificial nutrition and hydration. See In re Zornow, 919 N.Y.S.2d 273, 31 Misc.3d 450 (Sup. Ct. Monroe Cty. 2010).
