A Health Care Proxy, sometimes called a Health Care Agent or decision maker, is a document you create in which you name the person you choose to make medical decisions when you can’t. The document names a first decision maker or agent and should also list “back-up” decision makers just in case the person you name first can’t or won’t act when necessary.
Top Three Reasons A Health Care Proxy is Important
- Naming a Health Care Proxy or Agent puts you in control of who is making decisions for you in an emergency or medical crisis. By naming a person you avoid having the wrong people making the most important decisions for you at critical times.
- Naming a Health Care Proxy or Agent avoids family fighting over who is in charge during emotionally charged times. By making your wishes clear to family, friends and medical care providers, you are helping to avoid unnecessary disagreement, fighting and challenges about your medical care.
- Naming a Health Care Proxy or Agent increases the changes that your specific wishes will be followed by your decision making. Knowing who will be making decisions for you provides you and your agent the opportunity to discuss your wishes about care before a crisis arises.
Do I Have to Name My Spouse as My Health Care Agent or Proxy?
No. There is no legal requirement that you choose your spouse to act as your agent. In fact, I had a client who had named her husband as her agent and then she underwent surgery. Her husband was so stressed out and upset by her surgey that he wasn’t able to make any decisions while she was under anesthesia. Her daughter, who was named as her second agent, had to step in. Once my client had recovered, she called me to change her proxy to her daughter and her husband was thrilled. Sometimes, those closest to us simply don’t want to act in a certain capacity or don’t have the skills or temperament for the job. You should name the person you feel most confident and comfortable with to make decisions for you.
Can My Medical Decision Maker Force Me to Have Surgery?
No! Your Health Care Agent or Proxy cannot make decisions for you if you are able to participate in your own health care decision making. So long as you are awake, aware, communicating with your care providers and have capacity, you are in charge of your medical decisions. Your agent only acts when you can’t.
What If I Don’t Have a Health Care Proxy?
In New York State there is a statutory priority list of people who will be permitted to make medical decisions if you can’t and you don’t have a proxy. For example, your spouse would be given first priority to make medical decisions in New York, without a proxy, your adult children would be the next priority decision makers. But sometimes, the person allowed to make decisions by law is not the person you want making decisions. Just like the client I described above, she did not want her spouse making those decisions, she wanted her daughter to have first priority. Without a Health Care Proxy, that client’s husband would be the first person recognized to make decisions.
Should I Change My Health Care Proxy During a Divorce?
Yes. I generally recommend that people going through divorce speak to an Estate Planning Attorney about ways they can secure their financial and medical decision making during a divorce. Most people going through divorce don’t want their soon to be ex spouse making major decisions for them during an emergency. Without an updated Health Care Proxy, your legal spouse may still be given the ability to make choices for you even if that is not what you’d want.
Does My Health Care Proxy Include Instructions?
It can. Some practitioners and clients want their Health Care Proxies to include specific instructions about decision making. Others prefer that the document simply name the person they wish to have making decisions for them and defer to that person’s knowledge of their wishes and trust in their agent’s decision making.
Is a Health Care Proxy the Same as A Living Will?
No. A Health Care Proxy, generally, names the person in charge of decision making. A Living Will provides instructions for your care at the end of your life. They are two separate documents that work together to provide your family members, decision makers and care providers with information about your medical wishes.
Talk to Cara Law today about your medical needs and wishes and prepare your Health Care Proxy today.
