Helpful Information
The Importance - REALLY! - of a Health Care Proxy
By Alex L. Moschella, Esq., Neal A. Winston, Esq., Kara O'Brien Holland, Esq., Lauren Keane, Esq.
Anybody who watches one of the many medical shows on television can gain an appreciation of the medical miracles being performed in hospitals today. It is comforting to know that physicians and nurses are ready to use such a wide variety of medical treatments to save our lives. But we also want the assurance that, at a time of crisis, those caring for us make their decisions based on our own wishes and desires.
Some of the life sustaining medical procedures and treatments (such as the use of respirators, feeding tubes, cardiac resuscitation, DNR orders, etc.) may not be want we want. Treatment preferences often reflect an individual's personal values and religious views. When a person becomes unable to communicate their health care decisions to care providers, however, that individual's treatment preferences may be in jeopardy.
A Health Care Proxy - a legal document that gives specific rights and instructions regarding medical care - can help ensure that these preferences are honored in the event a person is unable to make or communicate their health care decisions.
Massachusetts residents have been able to create binding Health Care Proxies for almost twenty years. The purpose of the Health Care Proxy is to permit you, (known as the Principal) to designate in advance who will make your health care decisions should you become unable to make your own health care decisions.
A Health Care Proxy also allows you to appoint a health care "Agent." The Agent is permitted to make a wide range of medical decisions on your behalf if you are unable to make or communicate your wishes. The Health Care Proxy may be more or less specific on the decisions you would like your Agent to be able to make for you, depending upon your comfort level.
A Health Care Proxy becomes effective when it is triggered when your attending physician determination that you are unable to make or communicate health care decisions on your own. This determination must be made in writing by the attending physican in a case of physical incapacity. If the determination is based on mental illness or developmental disability, the attending physician must consult with a specialist before making a conclusion in regards to the patient's inability to make decisions.
Once it has been determined that the patient (Principal) no longer has the capacility to make their own decisions, then the medical facility will look to the Agent named on the Proxy to make health care decisions on the Principal's behalf. Should the Principal regain the ability to make informed health decisions (which must also be determined by the physician and should be done in writing) then the Agent's authority shall cease.
The best advice on choosing an Agent is to select an individual that you trust to make significant health care decisions. This trust usually stems from a relationship in which the Agent understands your values and beliefs and who respects your feelings in regards to such matters. In addition, the Agent should be a person with whom you feel comfortable discussing issues such as life-sustaining treatment, terminal illness and mental incapacity.
In choosing an Agent you should also consider the Agent's willingness to follow through on difficult medical decisions. In some situations there may be disagreements among relatives, friends and physicians as to the "proper" course of treatment for you. At these times the Agent must be able to communicate your wishes to the physician, honoring your expressed wishes, sometimes at the risk of alienating others
Under the Health Care Proxy law, a Principal is not permitted to designate more than one Agent at a time. The Principal should, however, designate an "alternate" Agent in case the Agent is unable or unavailable to make decisions on the Principal's behalf. A Principal may even have multiple alternate Agents, but each must have a designation as First Alternate, Second Alternate and so on. A Principal should discuss his or her treatment preferences with the alternate(s) as well as the primary Agent. The last thing you want is to have your important health care decisions made by a committee!
Under the law, no person who is an employee of a health care facility where the Principal is a patient or resident can serve as his or her Agent. An exception to this rule exists when the employee is related to the Principal by birth, marriage or adoption. So you cannot ask that your doctor serve as your agent and follow through with your wishes, unless your doctor is also related to you by birth, marriage, or adoption.
If you become unable to make or communicate treatment decisions to health care providers, providers will look for an alternate decision maker. If a Proxy exists, that person will be your Agent. If a Proxy does not exist, decisions will often be difficult to make and in some cases, a guardian may be appointed by the Probate Court. When no Proxy exists, the medical decision making process is usually slower than with a Proxy. More importantly, treatment decisions made by a committee of family and health care professionals may not reflect your values and beliefs. In sum, the Health Care Proxy assists in having your treatment preferences carried out in the most efficient manner possibe.
It is impossible to anticipate in advance all the possible medical situations that may call for an Agent's treatment decision. No amount of advance discussions between you and your Agent could possibly cover all situations. Certain decisions, however, arise frequently and therefore merit discussion with an Agent. These health care decisions include the use of feeding tubes (food delivered through a tube to a person's stomach) and respirators (breathing machines), treatment options for patients in persistent vegetative states (very deep comas) and comas, and the use of experimental treatments.
Another document you may wish to complete ahead of a time when you may need it is a Medical Directive. Medical Directives are not a binding document like the Health Care Proxy, but are a form that supplies the most likley situations under which an Agent would be needed to make your health care decusions. The Directive supplies the issues and then options that you check off indiciating your wishes. The Directive is signed by the Pricncipal and will serve a guide for the Agent when making difficult decusions, it may also clear up potential controversies over your wishes that may arise.
Some people believe that a "living will" can take the place of a Health Care Proxy. A living will is a document that is triggered only when a physician determines your condition is futile or irreversible. Living wills are currently not statutorily recognized in Massachusetts. If you have a health care proxy, a living will is not required and is simply another form of an advanced directive.
A Health Care Proxy and other accompanying documents are extremely important to have in place. It is important for a Principal and Agent to fully understand the nature of the documents and when such documents would be used. Though there are simple forms available at hosptials and nursing homes, more extensive forms and the couseling that goes with them from an specialized attorney is the best way to make sure you are protected, and that your wishes will be honored..
Disclaimer: While the information contained in this article is intended to be accurate, it is nonetheless presented with the understanding that it does not constitute legal advice or professional assistance in any manner. Independent legal advice by an attorney must always be undertaken before recommending any action or inaction based on this article. Alex L. Moschella, Esq. is a partner and Lauren M. Keane an attorney at Moschella & Winston, LLP, a law firm specializing in elder law issues, located in Somerville, MA. For additional information call (617) 776-3300 or visit: www.moschellawinston.com.