Estate planning is far from being a pleasant topic to talk about – I admit this and totally get it. No one wants to even think, yet alone talk, about being incapacitated or terminally ill. Take some of my clients, for example. Every time I bring this topic up, I can see and sense how annoyed they become and want to switch the conversation. But we all need to understand that this is part of life, and in many ways, there are situations that are beyond our control. And that is exactly why we need to plan NOW for whatever unfortunate situations can be. Because if we don’t – the cost of inaction can be dangerously high.
Last week, I talked about a living will, a legal document that states your medical treatment wishes when you can’t speak for yourself. Having a living will provides your doctors with a clear plan of action on what kind of medical care or treatment they need to provide. But what is even more important, is that a living will takes the burden and pain of making medical decisions about your health off the shoulders of your family and your loved ones. However, a living will alone isn’t the perfect end-of-life planning document. It is limited in scope and if drafted without sufficient details, your doctor can be left with a great amount of discretion when it comes to your medical treatment.
A health care proxy is another essential estate planning document that when it is combined with a living will, can make the end-of-life planning more controllable and fully aligned with your wishes and best interests.
What is a Health Care Proxy?
A health care proxy, also known as a durable medical power of attorney, is a legal document in which you name someone to act as your proxy, or a health care agent, and grant authority to make health care decisions for you if you are unable to speak for yourself. Unlike a living will, which is the document where you stated your wishes regarding your medical treatments, with a health care proxy you can have a real person acting on your behalf and in your best interest.
How a Health Care Proxy Works
When it comes to health care proxies, each state has its own laws and regulations. For example, a health care proxy could be a standalone document or a part of several documents combined into what’s called an advance directive. So, before you adopt one, you need to be absolutely clear of your state’s laws and requirements. This is when an estate planning attorney can be of great help.
As with living wills, doctors and other medical care providers need to determine first whether you have the capacity to make your own medical treatment decisions. If they determine that you can’t, only then can your health care agent provide instructions concerning your medical treatment.
Doctors and health care providers must abide by your agent’s decisions.
A health care proxy can be changed at any time. Like any other estate document, you need to periodically update it as your healthcare wishes and attitudes most likely will change over time. Also, you may need to update your health care proxy when you move to another state – just make sure to check the laws of the new state to see if amendments are needed.
How To Choose a Health Care Agent
To appoint your health care agent, you don’t have to wait until you get terminally ill. Quite the opposite. You need to appoint an agent while you are of sound mind and memory. Clearly, your health care agent should be someone who you really trust – a person who you literally would trust with your life. Such person is usually your spouse, a sibling, an adult child, or a longtime friend. Before you name such a person, it is extremely important to notify that person of your intention to name him or her as your health care agent. Given the level of personal responsibility that person assumes, not everyone is willing to accept such “honor”. That’s why you need to:
- Read your living will and address any questions and blind spots
- Review your medical care treatment wishes such as when in a terminal condition, in a permanent unconscious state, or in a vegetative state
- Discuss religious beliefs of your agent and be sure that nothing prevents him or her from carrying out your wishes
- Address your medical preferences when it comes to certain doctors or health care institutions
Only one health care agent can act at a time. However, you can also designate a back up health care agent who will take over in the event the primary agent isn’t available.
Always designate a back up agent
Living Will vs Health Care Proxy
Living wills and health care proxies have many things in common and they usually work in unison. Both documents pursue one goal – to make sure that the medical treatments you receive when incapacitated are aligned with your wishes. But despite the commonalities, a health care proxy is a much more flexible document. In the end, you have a real person that represents your best interest and acts on your behalf. However, you also need to be aware of certain limitations of health care proxies.
One such limitation is that your doctors will also look at your living will first. In other words, your health care agent can’t override provisions a living will. For example, there might be a new treatment or medical procedure discovered that could have improved the course of your treatment and put you back on feet. If your living will didn’t say anything about new medical treatment, your doctors would need to follow the instructions of the living will and you may not be able to receive the necessary, potentially lifesaving treatment. With the health care proxy in place, your health care agent also wouldn’t be able to force you doctor try a new treatment. But the agent will be able to complement your wishes if something comes up that no one could have anticipated.
A living will supersedes your health care proxy
In summary, your living will is an official statement of your medical wishes and it supersedes your health care proxy. As such, the language you use should be very detailed without any ground for confusion or misinterpretation. Of course, no one knows what kind of treatment will be available in the future, but what you can do is at least include wording that you are not opposed to it.
And once again, make sure to review and periodically update your both documents.
Creating a Health Care Proxy
Creating a health care proxy isn’t as hard as many people believe. Firstly, most states require you to be 18 years old and be of sound mind. Secondly, you need to decide on the person who you would want to name as your health care agent. Thirdly, you need create the document itself. You can easily draft the health care proxy with the help of estate planning software, utilizing the service of an estate planning attorney, or you can download your state’s advance directive and fill it out.
A health care proxy (along with a living will) is an extremely important end-of-life planning document that gives you more control over what kind of medical treatments you wish to receive when you are unable to speak for yourself. By designating someone who you trust as your health care agent, you can be highly assured that your medical wishes will be carried out. In addition to that, your family will know your wishes too and they will not have to make tough decisions about your health. This, in turn, can protect your family from unnecessary disputes and legal battles, and preserve your estate from high costs of intensive care.