Despite the dysfunction in Albany, the Legislature recently passed the Family Health Care Decisions Act ("FHCDA") that will permit family members to make health-care decisions for incapacitated loved-ones even in the absence of a Living Will or Health Care Proxy.
The FHCDA -- which was first proposed back in 1993 -- establishes protocols for health care providers to determine whether a patient in a hospital or nursing home possesses decision-making capacity. If it is determined the patient does not have requisite capacity, then a "surrogate" decision maker will be selected from a list of persons in order of priority, including family members, domestic partners and close friends. This new law should help reduce the number of expensive and time-consuming Guardianship proceedings that has usually been required in these types of cases in the past.
Notwithstanding the passage of the FHCDA, it is still best to have in place a Living Will and Health Care Proxy so that your loved ones will have direct guidance from you regarding your specific health care preferences and instructions for end-of-life care.