NYS Legislature Provides Medical Decision Making Authority to Same-Sex Partners

After being stalled in the Legislature for 17 years, the New York State Senate has finally joined the Assembly in passing the Family Health Care Decisions Act that enables a loved one to made health care decisions when the patient is not able to do so. The bill places a same-sex or opposite-sex domestic partner, just like a spouse, ahead of a surviving child or parent in making these decisions. Governor Paterson has said he will sign the bill into law when it is sent to him.

New York has been one of just two states where without a health care proxy, no one—not a domestic partner, spouse, or family member—could make health care decisions when the patient lacked the ability to do so. This gap in state law has sometimes forced loved ones to seek medical decision-making authority from a judge at the very time they should be focusing all their attention on caring for their partner.

Now, loved ones including same-sex spouses who were married out-of-state or fit the domestic partnership definition will have the ability to make these decisions. The domestic partnership definition is expansive, and includes those who may not be able to formally record their relationship because there is no domestic partner registry where they live. The Pride Agenda was instrumental in the redrafting of this domestic partner language to make sure it was uniform with all other domestic partner definitions in state law, such as that found in the hospital visitation bill that became law in 2004 and the control of bodily remains bill that became law in 2006.

Since same-sex couples still do not have the legal right to get married in New York State, the Pride Agenda has worked hard over the past few years to make sure LGBT families have protections in state law covering important end-of-life situations. When the Governor signs this measure into the law, the three most common situations where blood relatives sometimes seek to exclude a LGBT partner—hospital visitation, medical decision-making and the ability to make decisions about the disposition of partner remains—can no longer occur in New York State.

“We thank the Assembly and Assemblymember Gottfried for leading this effort for so many years and are glad the Senate has finally passed this measure and the Governor will be signing it into law,” said Executive Director Alan van Capelle.