Considerations in Crafting Health Care Proxies or Durable Powers of Attorney for Health Care

The most important document in your estate plan is the document appointing a health care proxy.  In Ohio and in Missouri this document is called a Durable Powers of Attorney for Health Care.  A health care proxy is a legal document that appoints another person to make health care decisions for you if and when you are unable. This person is usually called a proxy, agent, or attorney-in-fact.

The reason your health care proxy is the most important document in your estate plan, is that it protects you during your life at a time when you are most vulnerable- when you are ill, incapacitated, and/ or incompetent.  It helps to ensure that timely health care decisions can be made in emergent situations, and  it also helps to ensure that you always receive the health care you prefer. In health care decision-making, timeliness, quality, and preferences, are all important objectives best attained by a proper health care proxy.

Typically, you do not have to be terminally ill for a health care proxy to go into effect.  Nonetheless, a health care proxy can, if you so choose, enforce your end-of-life decisions.  Your living will, or advanced declarations, make your wishes known to your health care professionals.  In the event that they decline or refuse to act on your behalf, your health care proxy can protect your decisions.

If you do not appoint a health care proxy and cannot make health care decisions, state law determines who can make decisions on your behalf. Most states have laws that let close family members and others (surrogates) act on your behalf if you haven’t appointed a health care agent, but you may not want these people to make decisions for you.  Moreover, there may be delay resulting from identifying and verifying the relationship of these surrogates.  Finally, there may be limitations on what decisions these surrogates can make on your behalf.  

When choosing a health care agent, it’s important to appoint someone:

• Who you trust;
• Who you are confident will implement your decisions rather than substituting their decisions for your own;
• Who knows you, and therefore well understands your medical preferences;
• Who will be assertive in making decisions;
• Who will honor your wishes;
• Who will be able to resist pressure from family, friends, and/or health care professionals and institutions to ignore or alter your decisions;
• Who will be capable of communicating effectively with health care professionals;
• Who can be reached in the event of an emergency.

Because you should always appoint multiple successive agents, it is not necessary that the person you choose be the person that lives nearer your hospital, but you might resist appointing a person in active military service who is often unavailable for long periods of time.  Additionally, because familiarity with the health care system and medical terminology and procedures might make for more efficient communication and decision-making, you might consider more favorably those with medical background or experience.

Regardless, once you have appointed an agent, you must follow through with the appointment by communicating your choices with your agent.  At a minimum, that should mean providing the agent a copy of your health care proxy, and living will.  You should inform them of the identity of your primary care physician. In addition, you should discuss with your health care agent:

• Personal attitudes towards health, illness, dying, and death;
• Religious beliefs;
• Feelings about doctors and other caregivers;
• Feelings about institutional care and alternatives to institutional care;  
• Feelings about palliative care versus life-sustaining treatments like technologically supplied food and and hydration;
• Treatment preference if you are permanently unconscious or unconscious for a long time and not expected to recover.

You might consider a system like LegalVault® to effectively communicate, store, and make available your health care decisions and information to your agents and health care professionals.

A health care proxy generally only confers upon your agent the authority to make medical decisions for you. Decisions about things such as health insurance may be considered a financial, and not a medical decision,  depending on state law. It’s generally best to consult with a lawyer to appoint a general power of attorney for financial and non-medical decisions.

You do not need an attorney to write a health care proxy. You can use a standardized form and tailor it to your needs, but you may want to consult legal counsel to ensure that it meets all of your state’s legal requirements. Many attorneys, like myself, will either provide a statutory form, or will prepare a health care proxy at no or minimal expense.