Estates and Trusts

The New York State Senate passed the Medical Aid in Dying Act this week, taking a significant step forward towards legalizing physician and medically assisted death for terminally ill patients in New York. The Bill, which had previously been approved by the state assembly after an emotionally charged five-hour session, awaits Governor Kathy Hochul's action. If the Governor signs it into law, New York will become the 11th U.S. state, along with the District of Columbia, to codify an individual’s right to die with assistance from the medical community.

What is the Medical Aid in Dying Act (MAID)?

The latest incarnation of the signed legislation allows mentally competent, terminally ill adults with a prognosis of six months or less to be prescribed life-ending medication. In order to qualify, there are stringent requirements.

First, the patient must request assistance in writing and verbally to their physician; a measure that might be a stumbling block for those whose affliction, disease, or condition may prevent one or the other.  

Once the request is made in writing and verbally, two doctors then must confirm the patient’s terminal diagnosis, prognosis of six months or less, and the patient’s capacity as it relates to being of sound mind. A terminal diagnosis and prognosis are more calculable standards than capacity, which, in New York State has always been a fiercely contested subject and, in some cases, subjective and specific to the matter at hand.

The additional requirement mandates that there be two witnesses to the request to prevent any coercion. Certain individuals are explicitly prohibited from serving as witnesses: relatives by blood, marriage (even domestic partners,) adoption, any beneficiary entitled to a portion of the patient's estate, individuals affiliated with the healthcare facility where the patient is receiving treatment, as well as the patient’s care providers such as the attending physician and the consulting physician. The patient’s nominated health care proxy and agent under the Power of Attorney are also prohibited from serving as a witness.

Many advocacy groups have been pushing for this legislation for the better part of a decade and argue that it finally offers terminally ill patients a compassionate option to end their life and, presumably, their suffering. However, there are groups on the other side that have been vocal in their opposition, including certain religious and disability rights organizations, which have expressed concerns that such a law could disproportionately impact the disabled community.

Compassion & Choices, one such advocacy group in favor of the legislation, has repeatedly pointed out that a staggering 72% of New Yorkers support medical aid in dying and have urged lawmakers to advance the legislation that has long languished in committee in Albany.  

While it is unclear what Governor Hochul will do, the fact that the state assembly and senate have reached a consensus marks a significant milestone for those who advocate for such relief. The legislation hangs in the balance until Governor Hochul's decision is made but this author suspects that regardless of her decision, the controversy will continue about end-of-life care, patient autonomy, and the role government may or may not have in a person’s life and death.