How To Get, Create, or Choose a Health Care Proxy

How to choose a health care proxy? Planning for your long-term care allows you to decide what you would like to happen if, at some point in the future, you are incapacitated and unable to make decisions for yourself. With documents like a living will, you can state what you would like doctors to do if you are severely injured or terminally ill. One of the most important parts of long-term care planning involves designating someone who is authorized to make decisions for you if you become incapacitated. Different states have different terms for this individual, but a common term is “health care proxy.”

The document designating someone may also be called a health care proxy, a medical power of attorney, or various other names. This position comes with significant responsibilities and legal duties. It is not a decision to make lightly.

When to Choose a Health Care Proxy

Your health care proxy must step up to make medical decisions the moment you are no longer able to make those decisions for yourself. Incapacitation could happen for a wide variety of reasons. None of them are easy to ponder, but it is vitally important to do so.

Conditions commonly associated with old age, such as dementia, often lead to the need for a health care proxy. Age is not the only factor, though. Perhaps an accident puts you in a coma or causes a traumatic brain injury. An illness could affect your cognitive functioning. You need to have designated a health care proxy before an injury or illness occurs. Your parents or guardians are considered your health care proxies from birth until you turn eighteen. If you are eighteen years of age or older and have not designated a health care proxy, now is the perfect time to make that decision.

The person you choose as your health care proxy is going through life just like you. You should review your designation of a health care proxy periodically — again, before an injury or illness occurs — to confirm that the person you chose is still a good candidate. Are they still able to perform the duties of a health care proxy? Are they still willing to do it? You have the power to change your health care proxy at any time.

At a minimum, you should review this and other long-term planning documents every ten years or so. You should also review them prior to important life events like marriage, the birth of a child, or divorce. Events that could pose a risk to your safety, such as a trip overseas or a major surgery, also present an opportunity to review your long-term care plan.

Duties of a Health Care Proxy

A health care proxy acts on behalf of the person who designated them, known in legal terms as the “principal.” When the principal becomes too incapacitated to make medical decisions for themselves, their health care proxy becomes authorized to make those decisions for them. This includes the right to consent to or refuse medical procedures.

Because of the amount of trust that the principal is placing in the health care proxy, the law views a health care proxy as a fiduciary. A fiduciary has a legal duty to represent the principal’s interests, even to the detriment of the fiduciary’s own interests. They cannot use their position of trust to enrich themselves, also known as “self-dealing.” To put this in terms that are not a matter of life or death, a member of a corporate board of directors has a fiduciary duty to the corporation. This duty requires them to turn down business opportunities that would benefit them personally while harming the corporation’s interests. Every decision that a health care proxy makes on the principal’s behalf must be either:

  • To protect the principal’s health or life; or
  • To fulfill the principal’s stated wishes.

Fulfilling these duties can lead to difficult decisions. If the principal left instructions, such as a “directive to physicians,” indicating that they do not want life-sustaining treatment in certain specific circumstances, the health care proxy’s duty is to carry out those wishes even though it probably means the end of the principal’s life.

Qualifications to Serve as a Health Care Proxy

Most states set few specific requirements for serving as a health care proxy. A person must be at least eighteen years old, and they must be mentally competent to consent to medical treatments and make other important decisions. In some states, a person with certain criminal convictions might be barred from serving in a fiduciary capacity.

While formal legal requirements are few, a principal should take great care in choosing a health care proxy for themselves. It should be someone who can:

  • Communicate closely and clearly with the principal’s doctors;
  • Understand the full nature of whatever injury or illness led to the principal’s incapacitation;
  • Understand the options presented by the doctors;
  • Seek additional medical opinions when necessary; and
  • Make informed decisions that are in keeping with the principal’s wishes. 

Number of Health Care Proxies

If your state’s laws allow you to do so, you should consider naming one or more individuals as alternate health care proxies. Your first choice might not be willing or able to fulfill their duties when needed. You want someone to be able to step up in that instance. Naming an alternate health care proxy ensures that someone will be there to manage your medical care.

You do not want multiple health care proxies arguing over your medical decisions, though. You therefore probably should not have two or more health care proxies who are all authorized to act on your behalf simultaneously. Instead, your healthcare proxy document should state clearly that the second proxy only gains authority upon the first proxy’s refusal or disqualification, and so on for any additional proxies you have named.

Suppose that you designate your spouse as your primary health care proxy. As alternates, you name your sibling, followed by your first cousin. Now suppose that you are incapacitated in a car accident. Your spouse is also incapacitated in that accident. The hospital contacts your sibling, but they refuse to act as your proxy. Your cousin would be the next person they contact. To give this story a somewhat happy ending, your cousin accepts the responsibility.

Finding the Right Health Care Proxy for You

Aside from your state’s legal requirements for health care proxies, you want to look for someone who will represent you in the way you want to be represented. It should be someone you trust. Perhaps even more importantly, it should be someone who is willing to do it. Discussing the matter with the person ahead of time and getting their consent is a very good idea. You should do the same for any alternates that you name.

People often choose family members, such as a spouse, adult child, or sibling, as their health care proxy. It can be anyone who meets the legal requirements, though.

Appointing Someone as Your Health Care Proxy

The actual document that names someone as a health care proxy must follow formalities set by state law. These formalities are often similar to the requirements for signing a will. The health care proxy document must be signed by the principal and notarized. The proxies may have to sign another document stating that they have received a copy of the health care proxy document, and that they understand and accept the responsibility.

You should keep the original health care proxy document somewhere secure, such as a safe deposit box. Your proxy should receive a copy. You might consider giving copies to other family members or close confidantes as well. Prior to any surgery or other major medical procedure, you should provide a copy to your doctor in case it becomes necessary.

If you Need Help Setting Up Your Health Care Proxy

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