The Facts: My daughter told me that I should have a healthcare proxy.
The Question: What is a healthcare proxy and should I have one?
The Answer: A healthcare proxy is a legal document recognized in New York by which competent adults appoint a person to make medical decisions for them in the event they are unable to make those decisions themselves. Unlike a power of attorney that may be effective immediately upon signing, a healthcare proxy does not become effective unless and until you are no longer able to make healthcare decisions. Although only one person can act as your healthcare agent at a time, in your healthcare proxy you should name an alternate agent in case the first person you name is unavailable.
In a healthcare proxy you may give your agent unlimited authority or you may list the circumstances under which your agent can act. However, if you want your agent to be able to make decisions concerning artificial nutrition and hydration, you must specifically state in your healthcare proxy that your agent has the authority to make decisions about these life prolonging treatments. You must also mention the Health Care Insurance Portability and Accountability Act, or HIPAA, in your proxy. Most healthcare proxies prepared prior to 2003 are no longer valid because they lack the required HIPPA language.
Most people assume that healthcare proxies are only used in cases where an elderly patient is unable to make end-of-life medical decisions. However, healthcare agents may also play an important role when a younger patient is temporarily unconscious. Since people of all ages may lose consciousness or even slip into a coma as a result of a serious illness or injury, I recommend that every adult sign a healthcare proxy to avoid conflict between family members and to insure that their wishes are honored. It is important to discuss your wishes with the agents you name in your healthcare proxy so that they know what types of treatments and procedures you find acceptable and which ones you may not want to receive.
Although New York passed a statute in 2010 called the Family Healthcare Decisions Act (the “FHCA”) that gives people the authority to make healthcare decisions for loved ones who did not sign a healthcare proxy, having a healthcare proxy is preferable because it gives you control over who will be making decisions on your behalf. If your healthcare provider relies upon the FHCA to identify the person who will decide whether or not to provide life sustaining treatments, statutory decision maker may not know your wishes and may not be able to make the hard choices that are often faced by healthcare agents. In contrast, if you named a healthcare agent in a healthcare proxy and discussed with that agent your wishes, it will be easier for the agent to take the necessary steps to honor those wishes.
Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate planning, real estate, marital agreements and litigation.