No one likes to think about having a major accident or becoming seriously ill — but the sad reality is it could happen to anyone at any time. If something happens to you, you want to make sure you’ll get the medical care you need. But you’ll also want to be sure you get only the care you'd desire and not any extreme life-saving or life-sustaining treatments you may not wish to have undertaken.
But sometimes when important decisions need to be made about your care, you're in no position to make them because you're incapacitated. To ensure your wishes are followed in these difficult circumstances, you might consider naming a health care proxy while you're still in good health.
Let’s look at what a health care proxy is, what a person in this role does for you, and how to decide who in your life should be your health care proxy.
What is a health care proxy?
A health care proxy is a type of advanced directive, which is a broad term referring to legal documents that you prepare when you're healthy to express your preferences for what should happen if you become seriously ill.
Specifically, a health care proxy is a legal document that you complete to designate someone as your agent or proxy to make decisions for you in circumstances where you can't make them on your own. It's also called a durable medical power of attorney, and the person you designate is also sometimes called a health care surrogate.
Your agent or proxy can make health care decisions on your behalf when it comes to your medical care, but only if you're physically or mentally incapacitated and can't speak for yourself. In fact, doctors generally have to certify that you're incapacitated before a proxy can act for you. That means you can name someone to act as your agent at any time, even when you're perfectly healthy, and they won't get the power to act for you unless or until you become sick.
The power your designated agent has is also limited to making medical decisions. Health care proxies don't take over the management of your financial affairs or handle other issues on your behalf. The scope of their authority is limited to giving or refusing consent to treatment or deciding on a treatment plan for you when doctors cannot consult you directly.
Why you might need a health care proxy
It's important that everyone has a health care proxy because an accident or illness could strike at any moment and leave you unable to make your own health care decisions regarding life-or-death medical treatment.
There are many examples of situations in which people of all ages might need a health care agent or surrogate, such as:
- You get into a serious accident, are in a coma and unable to communicate, and doctors have to decide whether to perform risky surgery.
- You become very ill and are being kept alive on life support and are unable to express your preferences regarding whether to allow the machine to continue breathing for you.
- You develop Alzheimer's disease or another medical condition that impairs your cognitive abilities and you develop another life-threatening illness but are too impaired to express your preferences for how to treat it.
Health care proxies aren't just for seniors, though it's especially important that older people have them because they are at greater risk for developing incapacitating medical conditions. However, anyone at any age could get into an accident or develop a serious ailment that prevents them from making their own treatment decisions. You’ll need a health care proxy if that happens.
Because you don't want the courts to have to decide who should make choices on your behalf in a dire emergency, you should make naming a health care proxy part of your emergency plan along with buying life insurance and making a will.
Power of attorney vs. health care proxy
Both a power of attorney and a health care proxy are types of advanced directives. In fact, a health care proxy is a specific type of power of attorney, as mentioned above. It's a durable medical power of attorney. But what exactly does that mean?
When you give someone power of attorney, you’re granting legal authority for that person to act on your behalf. You can give someone broad authority with a general power of attorney. That would mean they can take legal action on your behalf in all sorts of transactions, from signing papers to selling your house to accessing your bank accounts to making choices about what kind of medical care you get.
You can also grant more narrow authority. For example, you can give someone power of attorney only to sign paperwork for you because you have to be out of town on the day your signature is needed. When you name a health care proxy, you're making a more limited grant of authority because you're vesting authority in your agent only to act for you when it comes to medical care decisions. Your health care proxy can't make financial choices.
It's a good idea to have both a general power of attorney as well as a medical power of attorney or health care proxy. That way, you can designate someone to manage your financial and personal affairs, as well as to make medical decisions for you. You can name the same person to fulfill both roles, or pick different people. If you want your spouse to be in charge of financial decisions, but you think they'd be too emotional to ever follow your wishes in denying life-saving care you might opt to choose a close friend as your health care proxy instead.
And as far as making your power of attorney durable, that means the chosen person retains their authority even in the event of your incapacitation. If you don't create a durable power of attorney, the agent's ability to act on your behalf would disappear when you become incapacitated — right when you need it.
Living will vs. health care proxy
A living will is also a kind of advanced directive, but it too works differently than a health care proxy.
When you make a living will, you express your preferences about specific medical interventions you do or don't want. You could, for example, indicate you want CPR to be performed, but no other extraordinary measures such as blood transfusions. Or you could specify that you want to be kept alive if you're on a ventilator and need it to breathe for you, but you don't want a feeding tube.
You can have both a living will and a health care proxy. If you do, your living will would be the final say when you've specified your preferences about a particular medical decision. If you indicated you didn't want a feeding tube, for example, your health care proxy couldn't overrule that decision. Your health care proxy would make choices for you in situations not addressed in your living will.
Because you can't anticipate every single kind of medical question you might have to answer when you're incapacitated, it's a good idea to have both a living will and a health care proxy. That way, you expressly make your preferences known with regards to some matters (such as when to pull the plug on machines keeping you alive) and you also get to choose who acts on your behalf when an unexpected question about care arises.
Who should be your health care proxy?
Your health care proxy could be a friend, family member, or another person in your life you are confident would make the kind of decisions about your medical care that you'd be comfortable with.
You want to choose a health care proxy whose religious beliefs or emotional attachment to you won't interfere with the types of medical treatment or end-of-life decisions you’d prefer. If you want to make sure you aren't kept alive using certain extraordinary measures, you wouldn't want to pick someone who you know believes that every possible option should be exhausted.
You should also talk about your health care wishes with the person you're selecting and make sure they understand and are comfortable with what you'd want if you become seriously hurt or sick. If the prospective proxy tries to talk you out of any medical choices while you are having this initial conversation, they aren't the right person. You can't be confident this person would respect your desires when you're not able to speak for yourself.
If possible, you should make sure your proxy’s values and philosophies on medicine and quality of life align closely with yours. This way you can feel confident that if an unexpected issue arises, the agent’s decisions would be in alignment with the choice you would make if you could act on your own.
How to make your health care proxy legal
Each state has its own advanced directive forms based on its own state law. You can find a link to each state's form on the website of the AARP. Local hospitals and healthcare facilities will usually also provide the form for you.
After you've completed your form, you should give a copy to the person you have designated as your proxy, as well as to your family members and chosen medical professionals. You want to make sure your doctors and loved ones know whom you've chosen to make your decisions if you cannot make them yourself.
Some states maintain advance directive registries, and if yours does, you'll need to submit the form so it is on file and health care providers can find it if you're brought to a medical care facility and cannot speak for yourself.
In states that don't have a registry, you can usually file a copy of your form with a probate judge in your county. Although care providers aren't typically required to search to see whether you have an advanced directive or health care proxy form on file, this can be helpful in at least making sure your caregivers or family members are able to access it.
Creating a health care proxy is just one of several key steps you should take to make sure you're prepared if something happens to you. It’s an important step in the overall process of estate planning. Designating an agent ensures the right choices will be made about your medical care, just as knowing how life insurance works, determining how much life insurance you need, and buying the best life insurance policy will help ensure your family is provided for no matter what.
Although thinking about these issues isn't fun, it's just as necessary as building up an emergency fund. After all, you never know when something could go wrong and you don't want you or your loved ones to be unprotected in case of a disaster.