MHL ARTICLE 81 - New York State Unified Court System

Matter of Barsky (Kyle), 165 Misc.2d 175; 627 N.Y.S.2d 903 (Sup. Ct., Suffolk Cty., 1995)
NO LONGER THE LAW, SEE, THE FAMILY HEALTH CARE DECISIONS ACT
ENACTED ON MARCH 17, 2010
Power to direct whether life-sustaining treatment should be provided to or withheld from IP is
denied. The right to decline treatment is a personal one which cannot be exercised by a third party
if patient is unable to do so unless health care proxy or "Do Not Resuscitate Order" (DNR) is in place
or there is otherwise clear and convincing evidence of patient's wishes regarding such treatment
while patient was competent.
Matter of Maxwell Z., NYLJ, 10/1/96, p. 21, col. 3 (Sup. Ct., Suffolk Cty.)(Prudenti, J.)
NO LONGER THE LAW, SEE, THE FAMILY HEALTH CARE DECISIONS ACT
ENACTED ON MARCH 17, 2010
Two sisters each petitioned for guardianship of their father, who was unconscious and in a fetal
position due to advanced Parkinson’s disease. While this matter was pending, a temporary guardian
was appointed. One sister requested an order giving authority to issue DNR order. Court denied this
request, finding that “while there was credible evidence that Mr. Z. indicated in casual, rather than
in solemn settings, general sentiments against the use of a respirator or machinery...,” there was not
clear and convincing evidence that the patient had ever formally expressed a desire to withhold lifesustaining
treatment such as resuscitation, however medically futile it might be.
Matter of Luis Barcco, Unpublished Decision and Order, Sup. Ct. Queens Cty (Markey, J.)
(Index # 61004/2010) March 23, 2010
Court holds the since the Family Health Care Decision Act would not go into effect for more than
another month, the signature of the daughter of a mentally incapacitated man for whom amputation
of his leg was recommended, was not valid and that she could only obtain medical decision making
authority pursuant to a court order under Article 81 or some other appropriate legal mechanism.
S.S. v. R.S., 24 Misc.3d 567: 877 N.Y.S.2d 860 (2009) (Sup. Ct. Nassau Cty.) (Murphy, J.)
After an evidentiary hearing held to determine the stated wishes of the subject of the proceeding, a
petition pursuant to MHL 81.02(a) for special guardianship to make heath care decisions and a
related petition pursuant to PHL 2992(1, 3) voiding a heath care proxy issued by the AIP to his wife
prior to suffering a heart attack and resultant severe brain damage were both denied. Petitioners, the
siblings of the AIP, were unable to overcome the evidence that their brother’s stated wishes, despite
his Orthodox Jewish background, and some confusing language in the Heath Care Proxy instrument,
were to be removed from life support, thus they were unable to establish that the heath care agent,
his wife, was acting contrary to his stated wishes. Since the Heath Care Proxy was held valid, the
court found that there was no need for the appointment of special guardian.
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