Opinion 13-141

October 24, 2013

Digest:         A full-time judge must not serve as a friend’s health care agent unless he/she obtains the Chief Administrative Judge’s approval under Section 100.4(E)(1).

Rules:          22 NYCRR 100.0(E); 100.4(E)(1); Opinions 11-117; 09-85.

Opinion:

         A full-time judge asks if he/she may serve as a health care agent for a “close, dear friend” at the request of the friend and the friend’s spouse. According to information publicly available on the New York State Department of Health website (http://www.health.ny.gov/forms/doh-1430.pdf):

The New York Health Care Proxy Law allows you to appoint someone you trust – for example, a family member or close friend - to make health care decisions for you if you lose the ability to make decisions yourself. By appointing a health care agent, you can make sure that health care providers follow your wishes. Your agent can also decide how your wishes apply as your medical condition changes. Hospitals, doctors and other health care providers must follow your agent's decisions as if they were your own.

It appears from this information that a person serving as health care agent ordinarily has “the authority to make all health care decisions for [the patient], including the decision to remove or provide life-sustaining treatment,” when a doctor determines that the patient is “not able to make health care decisions for [him/her]self.” The inquiring judge states that he/she is willing to serve in this capacity, and is “prepared to carry out [his/her friend’s] express wishes.”

         The question presented here is whether serving as a health care agent is a “fiduciary” activity governed by Section 100.4(E)(1):

A full-time judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, designated by an instrument executed after January 1, 1974, except for the estate, trust or person of a member of the judge's family, or, with the approval of the Chief Administrator of the Courts, a person not a member of the judge's family with whom the judge has maintained a longstanding personal relationship of trust and confidence, and then only if such services will not interfere with the proper performance of judicial duties.

         Under the Rules Governing Judicial Conduct, the word “fiduciary” is a defined term, which “includes such relationships as executor, administrator, trustee, and guardian” (22 NYCRR 100.0[E]). Thus, the list of “fiduciary” relationships in the Rules is not an exclusive or exhaustive list; it merely provides illustrative examples of such relationships. In the Committee’s view, based on the facts provided, service as an individual’s health care agent is a “fiduciary” type activity, in that it will place the inquiring judge in a position of trust and confidence with respect to an incapacitated friend, much like a guardian or personal representative (see generally 22 NYCRR 100.0[E]).¹ Because the inquirer is a full-time judge, and the health care proxy will be executed after 1974, Section 100.4(E)(1) applies (see generally Opinions 11-117; 09-85).

         Therefore, the inquiring full-time judge must not serve as his/her friend’s health care agent unless he/she obtains the Chief Administrative Judge’s approval (see 22 NYCRR 100.4[E][1]; Opinion 11-117). The Committee notes that approval cannot be granted unless (1) the judge “has maintained a longstanding personal relationship of trust and confidence” with his/her friend, and (2) the judge’s service as health care agent “will not interfere with the proper performance of judicial duties” (22 NYCRR 100.4[E][1]).

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     ¹ The information sheet included in the inquiry advises persons who complete a health care proxy form that “Your agent will start making decisions for you when your doctor determines that you are not able to make health care decisions for yourself. ... Even though you have signed this form, you have the right to make health care decisions for yourself as long as you are able to do so....”