Most people avoid thinking about their mortality as much as possible. COVID-19, however, has pushed the topic into the spotlight and prompted many people to think about their end-of-life wishes. But, deciding what kind of care you want to receive if you become seriously ill isn’t the end of the discussion. You should also consider whether you want to appoint another person to help carry out your end-of-life wishes and/or make medical decisions for you if you become unable to do so.
There are two main ways to appoint another person to assist with your medical decision making: (1) a Health Care Proxy designation in an Advance Directive; or (2) a Health Care Agent designation in a Power of Attorney for Healthcare.
Advance Directive – “Health Care Proxy”
An Advance Directive, also called a “living will,” is a document you can use to describe ahead of time the kind of medical care you would or would not want in certain end-of-life situations. You can also use an Advance Directive to appoint a health care “proxy” – a person who can make end-of-life decisions and speak for you if you are too sick to speak for yourself. You can state in your directive whether you want your proxy to be able to make decisions about things that are not covered in the form, or if you want to give your proxy the power to make final decisions about your care, even if those decisions are different from what you chose in the advance directive.
Power of Attorney for Healthcare – “Health Care Agent”
A Power of Attorney for Healthcare also allows you to give another person authority over some of your medical care. Unlike an Advance Directive, however, a Power of Attorney for Healthcare is not limited to end-of-life situations. Instead, a medical Power of Attorney can give another person authority to hire and fire your doctors, consent to medical treatment beyond end-of-life care, access your medical records, and perform other tasks related to your healthcare.
An experienced attorney can combine the “living will” aspect of an Advance Directive with a Power of Attorney for Healthcare to give you a complete medical planning document that is tailored to your individual needs and wishes. This combined document can cover both your end-of-life decision making as well as other aspects of your medical care.
What Kinds of Decisions Will My Proxy or Agent Make for Me?
It’s important to note that you do not lose your decision-making authority after you appoint a healthcare proxy or a healthcare agent. As long as you can communicate your wishes they will be honored. It is only after you become unable to communicate your wishes that your proxy or agent will step in to speak on your behalf.
Both an Advance Directive and a Power of Attorney for Healthcare can be written in such a way as to control the amount of authority given to your proxy or agent.
For example, your Advance Directive can direct that your proxy precisely follow your wishes as you outline them in your Advance Directive, essentially making the proxy your mouthpiece to enforce your end-of-life decisions and giving him or her no discretion at all. On the other hand, a Power of Attorney for Healthcare can give your healthcare agent broader powers to make medical decisions on your behalf, even outside of end-of-life situations. The Power of Attorney typically provides that your agent is allowed to make medical decisions – or certain kinds of medical decisions – for you only if you are unable to communicate for yourself. Even then, your agent will be charged with aligning his or her decision with what you would choose for yourself if you were able to communicate.
Who Should I Appoint as My Proxy or Agent?
Regardless of how your Advance Directive or you Power of Attorney for Healthcare is drafted and how much latitude you give your proxy or agent in the document, you should carefully choose an adult who knows you well and whom you trust to serve in that role. Many people choose a family member as their proxy and/or agent, but a close, trusted friend can also be a good choice. Whomever you choose should live nearby or be able to travel to where you live if needed. You should not choose one of your doctors or other medical care providers or any of their relatives.
It is important that the person you name as your proxy and/or agent is be willing to accept the responsibility of serving in that role.
They should also be someone you feel comfortable discussing your healthcare priorities, your personal and spiritual values, and your end-of-life decisions with now. The more information your proxy or agent has about what’s important to you regarding these medical decisions, the better job he or she can do in communicating your wishes to your medical providers. While having these discussions with the person you would like to appoint, you may discover that the potential proxy opposes your choices and therefore would not feel comfortable enforcing them for you. Such a person would of course not be a good choice to serve your proxy or agent.
Your proxy or agent should also be someone you trust to handle conflicting opinions from other interested family and friends and to be a strong advocate for you if a doctor or medical institution is unresponsive. It is not uncommon for family members and friends to disagree about kind of care should be provided to a loved one. Your proxy should be someone who is assertive enough to follow your wishes despite conflicts among other people who care about you.
In other words, because your proxy will be dealing with life or death choices, the person you select should be someone you quite literally trust with your life!
Alternate Proxy or Agent
You can also appoint a second person to serve as your “alternate” or “successor” proxy in your Advance Directive or agent in your Power of Attorney for Healthcare. The alternate will step in if your first choice is unwilling or unable to act as your proxy or agent.
Are You Ready to Name a Healthcare Proxy or Agent?
Having an advance plan for your medical care is a valuable part of a complete estate plan, and can give you the peace of mind of knowing that your values and wishes will be honored. You can also take comfort in knowing that your loved ones will have a written record of your wishes to guide them in the unfortunate event that you become too ill to communicate about your medical care.
Our attorneys are experienced in helping clients record their healthcare wishes via Advance Directives and Powers of Attorney for Healthcare. Call our Tuscaloosa office at 205-553-5353 today to set up an appointment to discuss your options. Nervous about leaving the house given the current pandemic? Lewis, Lewis & Falkner can help you prepare your estate plan remotely in the safety and comfort of your own home.
Already have an estate plan, including an Advance Directive? Now is a great time to review your documents and confirm that they still meet your needs.
