What Is a Healthcare Proxy?
A healthcare proxy is a legal document that appoints an agent to make decisions for you if you are hospitalized and unable to express your wishes. The law sometimes refers to a health care proxy as medical power of attorney or health care power of attorney. You may choose any person over 18 years old as your agent, except for your hospital’s operator, administrator, or employee. A trusted friend or family member is usually a good choice. You want to choose someone who you think will make the best decisions or with whom you can best communicate. Choosing one person to make decisions ahead of time can help avoid conflict or confusion among family members or significant others. By law, your agent must:
- Follow any instructions you have written or given to your agent orally;
- Act in your best interests;
- Keep your property separate from their own;
- Disclose their relationship as your agent whenever they sign on your behalf; and
- Keep receipts for all payments and transactions they make on your behalf.
Your agent will make decisions for your healthcare only when your physician determines that you lack the capacity to make these decisions for yourself. New York law defines the “capacity to make health care decisions” as “the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.” You may also appoint an alternate agent in the case that your first choice is not reasonably available, willing, and competent to serve as your agent.
When Do I Need A Healthcare Proxy?
A healthcare proxy can benefit you as you age and hospitalization becomes more likely. However, everyone can benefit from having a healthcare proxy. The healthcare proxy may include your wishes or instructions about health care decisions and limitations upon the agent’s authority. Similar to a “durable power of attorney,” the healthcare proxy continues while you are incapacitated unless you have said otherwise. You should discuss your wishes with your agent when you sign the healthcare proxy, including your moral and religious beliefs. Your healthcare agent should understand:
- Whether you would want life support initiated, continued, or removed if you are in a permanent coma;
- Whether you would want treatments initiated, continued, or removed if you have a terminal illness; and
- The circumstances where you would want artificial nutrition and hydration initiated, withheld, continued, or withdrawn.
If you have not given instructions to your agent before you become incapacitated, and your wishes cannot “with reasonable diligence be ascertained,” your agent can make decisions based on your best interests, except for decisions about artificial nutrition and hydration. You should be sure to communicate your wishes for this treatment in the healthcare proxy.
What Is the Importance of a Healthcare Proxy in My Estate Plan?
A healthcare proxy and a living will are two documents in your estate plan that help your family understand your wishes regarding healthcare treatment. In a living will, you can make decisions ahead of time about certain types of treatment. You can put similar instructions in your healthcare proxy. The difference between the two documents is that a living will does not appoint someone as your agent, and you must clearly state your wishes for a particular treatment. When you have a healthcare proxy, your agent can interpret your wishes as your circumstances dictate. You do not need to decide ahead of time about treatment you may not know you will need. The New York State Department of Health lists the following as treatments that you may want to discuss with your healthcare agent:
- Artificial respiration;
- Artificial nutrition and hydration (nourishment and water provided by feeding tube);
- Cardiopulmonary resuscitation (CPR);
- Antipsychotic medication;
- Electric shock therapy;
- Antibiotics;
- Surgical procedures;
- Dialysis;
- Transplantation;
- Blood transfusions;
- Abortion; and
- Sterilization.
While these decisions are sometimes difficult to discuss, it’s important for your agent to understand your healthcare wishes. Otherwise, your family may be left to juggle their grief with complex and life-altering healthcare decisions. Compared to the strain of an instant decision, signing a healthcare proxy is simple. You merely need a document stating that you are appointing your chosen person as your agent and two witnesses to sign that you were not under distress when you made the proxy. Unlike many estate documents, your witness’s signatures don’t need to be notarized.
How Do I Put a Healthcare Proxy in My Estate Plan?
Because you cannot predict when you may become incapacitated, a healthcare proxy is one essential document in your estate plan. While you may think of an estate plan as planning for your assets after your death, planning for your healthcare is essential for placing your family at ease if you are hospitalized. Hospitalization and incapacitation can happen to anyone at any age. Don’t wait to sign your healthcare proxy. When you contact Law Office of Andrew M. Lamkin, P.C., you’ll reach a trusted and respected New York estate planning lawyer who will carefully examine your situation and listen to your concerns. Whether your goals involve large assets or simply an explanation of your healthcare wishes, our lawyer will help you through the legal process so your family will be protected and cared for in your absence.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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