Thinking and talking about what happens at the end of life can be difficult, and yet it’s also the best way to ensure someone’s explicit wishes are carried out. Here’s one aspect to consider and discuss with loved ones.

What Is a Health Care Proxy?

A health care proxy is a legal document that you can draw up to assign someone the rights and responsibility to make health care decisions on your behalf should you become incapacitated, whether temporarily or permanently. The person named to make decisions is called the agent.

Who Can Be a Health Care Proxy Agent For Me?

You must appoint an agent who is at least 18 years old. That person should be someone you have a great deal of trust in, as they may need to make critical decisions on your behalf. You’ll want to go through your wishes in detail with the agent, both to ensure they understand them and know what to do and to determine that they are willing to do them. If they have concerns over carrying out your wishes, you may need to find another agent.

Many people name a spouse, family member, or close friend. It’s also possible to name your doctor, who would have greater medical insight and training. But if you choose a doctor, that doctor can no longer act as your physician if the proxy goes into effect. They can either be the agent or the proxy, but not both at the same time.

It’s a good idea to have a secondary agent noted in your proxy in the event that the first one named is unable to act for some reason when they’re needed. The same criteria apply to the backup agent as to the primary agent.

Another thing your proxy cannot do is be a witness on the proxy form itself. The state requires two witnesses who are each at least 18 to witness and sign the form, and neither can be the proxy (or the secondary proxy, if applicable).

What Can a Health Care Proxy Do in End-of-Life Scenarios?

The proxy may have a significant role in end-of-life decisions when the person they represent can’t make those decisions themselves. The key here is that the proxy will have exactly as much authority as the person they’re representing allows them to have.

Among the authority the proxy agent can have:

  • They can determine whether the incapacitated person should or should not receive different treatments, such as having food and water delivered through feeding tubes, intubation to assist with breathing, etc.
  • If treatments are to be used according to the terms of the proxy, the agent can choose which treatment to use.
  • The agent can decide when any treatment should be stopped.
  • The agent can specify which, if any, organs are to be donated if the patient dies. The proxy form allows selective choices for organ donation, including whether or not any available organ can be donated or just specific ones, if they can be used only for transplantation, or only for research or education.

Could My Health Care Proxy Agent Be Sued for Making the Decisions I Asked Them to Make?

No. If the agent is acting in good faith and doing what the proxy asked them to do, they can’t be legally challenged. This is one of the reasons a health care proxy is a valuable tool. If there are family members who don’t approve of the choices made by the patient, they might sue to stop treatment (or the cessation of treatment) if there is no health care proxy in place. It’s also why it’s highly advisable that you have an experienced estate planning attorney assist in drawing one up to ensure it’s legally valid.
The proxy agent also cannot be charged with the patient’s medical bills. Those can go only to the patient themselves or to the estate if the patient passes away.

Who Should Have a Copy of My Health Care Proxy?

Your doctor and health care staff should have copies, as should the person(s) named as agent in the proxy. Beyond that, it’s good to give close family members and friends copies. It’s also a good idea to put a note in your wallet stating that you have a health care proxy in place and naming the agent in case there’s an emergency situation where you can’t communicate that fact to medical personnel.

Who Is Required to Act on the Proxy Agent’s Decisions?

With a properly drawn up health care proxy, all hospitals, doctors, and other health care professionals and facilities are required to act on the agent’s decisions. That’s another reason all medical professionals someone works with should have copies of the proxy, so they’re aware of it and able to work quickly with the agent when necessary.

What Should I Do if I Want to Draw Up a Health Care Proxy?

Call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. We can review your wishes and plans and how a health care proxy would help ensure your wishes and plans are followed. It’s essential to ensure all the details that the state requires are taken care of so the proxy can go into effect as soon as it’s needed and not cause valuable time to be lost while others try to determine what your wishes are.