Healthcare Proxy

You should consider choosing your proxy at the same time you create your advance directives (i.e. soon after you have had the ‘Conversation’). Review your choice whenever you review or update your advance directives. If you do not choose one, the state may name a surrogate for you.

You should choose someone you know and trust who knows what you would want and is willing and capable of performing the duties. While this is usually a family member, you can choose a friend, lawyer, or clergy member if you don’t think your family members could be objective or handle the responsibility. In most states you cannot choose a medical professional involved in your care.

Before you appoint anyone you must go over the details of your wishes and what they are legally expected to do based on those wishes, be assured that they understand what is involved and will comply with your wishes, and be sure they can manage the responsibility without being overwhelmed or swayed by emotion.

• Other important qualities include being able to:
  
  • Make decisions for you even if their own wishes or preferences are different from yours;
  • Aggressively stand up for you under any circumstances;
  • Comfortably ask questions of busy doctors and other providers, as well as ask for clarification if the answer or situation isn’t understood; and/or
  • Make decisions in changing situations.
• You may consider not choosing a person who:
  
  • Is much older than you;
  • Has serious religious, spiritual, or intellectual objections to your wishes;
  • Is very indecisive or too timid to aggressively advocate for you;
  • Travels a lot or lives too far away, so may frequently be unavailable;
  • Would be unable or too quick to deny life-saving or to discontinue hopeless life-sustaining treatment; and/or
  • Would not work well with your Financial Power of Attorney (POA), since your financial POA would be responsible to pay for any medical treatment your medical POA authorizes.
• Since your healthcare proxy cannot transfer those powers to someone else, you should list alternates in case your first choice can no longer serve or is unavailable when they are needed. To avoid conflicts, it is best to have only one healthcare proxy at a time. 

To appoint a healthcare proxy, it is best to create a legal document, although some states allow you to do this in your Living Will/Advanced Care Plan. As with any legal document, it must be done correctly as the court can have the final say on whether it is valid or whether your agent is qualified.

You should keep the original in your files. Your proxy and primary care healthcare provider should have copies.

It would be best for your proxy if you make important medical decisions and record them in an advance directive to inform them or anyone else involved in your medical care about your preferences. If you don’t, your proxy or agent will have to make a decision based on their best judgment of what you would want.

The healthcare proxy’s role usually begins when you become incapable of making these decisions, but you can allow them to make decisions you could make but don’t want to. In cases of an inability to make decisions, your physician must certify that you are unable to make your own medical decisions. You may be able to appoint one or more alternatives in case your first choice proxy is unavailable — many states only allow you to have one proxy at a time.

The role of your healthcare proxy is limited to those powers you specifically grant them. However, limiting their powers can create problems, such as what to do if you limit them to decisions outlined in your advance directives, but an unanticipated situation arises. For example in this situation, they could not refuse a feeding tube if you did not specify this in your advance directives.

Possible responsibilities include:

• Learning about your medical condition and treatment options;
• Communicating with your family about your condition and treatment plan;
• Choosing medical care including medical tests, medications, surgery, or other procedures, and diet;
• The right to access and approve the release of your medical records, see medication lists and lab results, request refills and obtain prescriptions, and talk to medical providers about your care;
• The right to request or decline emergency and/or life-support treatments, usually based on your advance directives;
• Choosing pain management, sedation, and further treatment, including authorization or refusal of medication or procedures;
• Admitting or discharging you from an assisted living facility, hospital, hospice, or nursing home;
• Choices about who provides medical and personal care and where to seek medical treatment, including the right to ask for a change in healthcare providers, request and coordinate second opinions or outside medical care, move you to another facility, hospital, or state,  and/or take you home;
• The option to take legal action on your behalf in order to advocate for your health care rights and wishes, including getting court authorization if required to obtain or withhold medical treatment;
• The right to apply for Medicare, Medicaid, or other programs or insurance benefits on your behalf;
• Grant permission for organ donation, autopsies, or body donations, unless you have created specific documents to account for this; and
• Knowing about your religious or spiritual values that will affect the types of care or treatments you would consent to receive.

As with all such documents, you should update the healthcare proxy document when circumstances change.

A divorce will automatically revoke your ex-spouses healthcare power of attorney. It is best to create a new one under these circumstances, even if you have named an alternate. You may want to do so before the divorce becomes final.

Even though you have written down your wishes, proxies occasionally choose not to comply with what you have declared in your advance directive. Whether or not they are legally allowed to authorize any action violating your wishes will vary by state. You may want to give them permission to if they strenuously object to the point they would experience guilt or other emotional distress.

A healthcare proxy cannot:

• Break their fiduciary duty by not acting in your best interest;
• Make decisions on your behalf after your death (a healthcare proxy ends at your death); or 
• Change or transfer healthcare proxy to someone else.