Your vision for your senior years might involve sunny mornings on the golf course, bridge parties with friends, and relaxing walks through nature. And while you should seek out those carefree activities, recent economic events remind us that it’s important to keep an eye on the practical matters, too. Those practical matters include your finances and estate, of course, but also your health.
The unfortunate reality is that aging is often accompanied by declining health. And one way to manage future health concerns proactively is to designate someone you trust as proxy to make your health care decisions if you cannot.
Health Care Proxy Definition
What is a health care proxy? A health care proxy is a document that gives someone else the right to make medical decisions on your behalf. The document can also be called a health care surrogate, health care proxy form, medical proxy, a durable medical power of attorney, or, simply, HCP. It is a type of advance directive that helps your loved ones determine how to care for you at the end of your life.
The person you designate, called your proxy or your agent, is only authorized to direct your medical care if you are incapacitated in some way. That might mean you are unconscious or otherwise unable to communicate, or it could mean you are suffering from dementia or a similar condition that impacts your ability to make logical decisions. Depending on your condition, a doctor may have to certify that you are unable to direct your own health care before your proxy gets any decision-making authority. And if you recover, you do regain control over your treatment.
Health care proxy vs. power of attorney
A power of attorney is a document that gives another person the right to make legal and financial decisions on your behalf. You can specify that individual’s scope of authority, but it often involves things like opening bank accounts, paying bills, and selling property.
A health care proxy is essentially a power of attorney that is specifically for medical decisions. But your health care proxy will not have any authority to make other types of decisions or have any access to your finances. In the same way, someone you’ve authorized to make your financial decisions will not automatically have the right to make medical decisions.
You might want to give a single person authorization to manage your finances, legal affairs, and health care; to do so, you’d need to execute a health care proxy and a power of attorney. The rights under a power of attorney are active as soon as the document is executed. The decision-making rights under a health care proxy are activated only when you are incapacitated.
Health care proxy and living will
A living will, like a health care proxy, is a type of advance directive. This legal document states your preferences for receiving life-sustaining treatments, usually because you have a terminal illness or no detectable brain activity. Those treatments include things like tube feeding, heart-lung machines, dialysis, and ventilator support that may prolong your life temporarily, but won’t substantively improve your condition. Living wills can also define your preferences for receiving CPR, being treated for pain or nausea, and donating organs.
Living wills serve the same purpose as health care proxies, in that they provide direction on your treatment when you are unable to. But living wills can be difficult to follow, because the language can be easily argued. For example, a living will might indicate that you should not receive life-sustaining treatment if your condition is “irreversible” or you have “no reasonable expectation of recovery.” In real life, these extremes are uncommon. More often than not, you’ll have a small, but unlikely chance of recovery.
For that reason, elder care experts recommend health care proxies over living wills. Assuming your decision-maker is fully aware of your preferences, that person can make the right decision for your care based on the circumstances at hand.
The Proxy’s Role
Anyone over the age of 18 can make health care decisions on your behalf, as long as that person is not employed by the facility where you are receiving treatment. But the role of proxy is not a job for just anyone, as religious and philosophical beliefs may affect a person’s ability to fulfill your wishes with respect to life-sustaining treatments.
Before you ask someone to be your proxy, spend time clarifying your preferences for end-of-life care. Consider your spiritual views on life and death, and how those perspectives should influence your desire to receive treatments that would extend your life — versus treatments that would keep you comfortable but expedite death. It may help to write down your thoughts, because you’ll have to explain these preferences to your prospective proxy.
The right proxy will be a person you trust to follow your wishes, no matter what. That individual must have the capacity to honor your preferences even if they result in your death or conflict with his or her own views. But the proxy role even goes beyond that. Ideally, your proxy will also have the communication skills to ask questions and press for clear answers from doctors and nurses. And because your condition may not be clear cut, you have to trust your proxy will make a good decision — even when the information at hand is vague or limited.
Your proxy will also bear the burden of keeping other family members apprised of your condition and any treatment decisions that are made. And even when there are disagreements about those treatment decisions, your proxy needs to remain firm and committed to your preferences.
Also, because health care decisions for a loved one can be so complex, experts recommend you define a single person as your proxy, rather than multiple people. Legally, you could ask your daughter and your nephew to share in the decision-making. But if they disagree about your treatment plan, that complicates an already delicate situation. You could, however, define a second person as a back-up proxy, in case your first choice is not available. Both your primary and secondary proxy must understand your wishes and be ready to defend them.
Your proxy’s rights
Once your proxy has the authority to make decisions for you, that person will also have access to your medical records and related information. If you want to limit your proxy’s access, you would define those restrictions within the health care proxy document itself. Note that any restrictions you place on your proxy may make it more difficult for that person to make informed decisions about your health care.
Interviewing prospective proxies
Agreeing to be a proxy is not a decision anyone should enter into casually. Make sure your prospective proxy understands the gravity of the role and the challenges that come with it. You might consider asking scenario-based questions, such as:
- If I prefer not to be kept on life support, would you be strong enough to respect my wishes, even if it leads to my passing?
- Can you stand by my treatment preferences, even if other family members disagree?
- How would you proceed if my medical team says I have a very low chance of recovery? What questions would you ask?
- Can you set aside your own religious beliefs to ensure I get the treatment I want, or don’t get the treatment I don’t want?
Not everyone is up to the task of making difficult choices that have life or death consequences. You might learn through this interview that your first choice of proxy doesn’t want the responsibility or can’t compartmentalize his or her own beliefs about end-of-life treatments well enough to follow your preferences. That’s understandable. It’s better to uncover those things now, so you can move on and find someone who is ready for the responsibility.
State Law and Health Care Proxies
Once you have selected your proxy, communicated your preferences, and feel comfortable that your proxy can handle the responsibility, you are ready to execute a binding health care proxy.
State law governs health care proxies and also living wills. Each state provides a recommended format for these documents; some states combine the living will and health care proxy into one advance directive form, while others keep these documents separate. Your state law also specifies the requirements for health care proxies to be valid and legally binding. The document always has to be signed, for example, but it might also need to be notarized. Consult with a local elder care attorney experienced in advance directives to learn more about your state’s requirements for an enforceable health care proxy.
Changing your mind
Even after you execute a legally binding health care proxy, you do have the right to change your mind. And, you can do so without a lawyer or notary. To revoke a health care proxy, just tell family, friends, or your medical team that you no longer want your proxy to have decision-making authority. You could also:
- Create and sign a new health care proxy with a more recent date
- Divorce or separate — if your spouse is listed as your proxy, divorce or separation will invalidate the health care proxy
- Rip up the health care proxy in front of someone else
Complete a Health Care Proxy for Peace of Mind
With a health care proxy in place, you can rest easy knowing that someone you trust is in your corner, ready to fight for your preferences in an end-of-life situation.
- Health care proxies. (n.d.). Retrieved May 09, 2020, from https://www.medicareinteractive.org/get-answers/planning-for-medicare-and-securing-quality-care/preparing-for-future-health-care-needs/health-care-proxies
- Health care proxy vs. living will. (n.d.). Retrieved May 09, 2020, from https://getpalliativecare.org/health-care-proxy-vs-living-will/
- State-by-state advance directive forms. (n.d.). Retrieved May 09, 2020, from https://www.everplans.com/articles/state-by-state-advance-directive-forms
- How can a health care proxy be revoked? (2019, October 11). Retrieved May 10, 2020, from https://www.infinlaw.com/faq/health-care-proxyhow-can-health-care-proxy-be-revoked/