Back to life-planning documents basics: the HEALTHCARE PROXY

April 27, 2015


Dear Friends,

Welcome to the third installment in my series of e-mails on the subject of "Life-Planning Documents," which include the Last Will and Testament and the Durable Power of Attorney.  Today's installment concerns the Healthcare Proxy, a document that's similar to, but quite different from, the Power of Attorney.

What is a Healthcare Proxy?

A healthcare proxy is very much like a durable power of attorney, except that it allows the agent (the “proxy”) to make only medical – not financial – decisions on behalf of the principal. The healthcare proxy becomes effective only if the principal – the person who has signed the proxy – becomes unable to make or communicate medical decisions to his or her doctor.  Only one agent at a time can be appointed, though a successor agent(s) may be named too.

Why does someone need a Healthcare Proxy?

To state what you probably already know, a healthcare proxy becomes useful in the event that an important medical decision needs to be made and the patient can’t make that decision.  But there’s a bit more to it than that.

A healthcare proxy is important at any age!

Many people think that a healthcare proxy comes into play only at the end of life, when someone may need to decide whether to withhold or withdraw life-sustaining treatment.  But sometimes a person is only temporarily unable to make a decision, such as during a period following a bad accident or after surgery.  During such a time, a healthcare proxy agent can make necessary medical decisions before the patient recovers.

A healthcare proxy allows you to choose who will make decisions for you

Many people assume that the person closest to you automatically has the right to make important decisions if you are unable to make them yourself.  There actually is some truth to this when it comes to medical decision-making, thanks to a law called the New York Family Health Care Decisions Act.  This law says that certain family members, friends, and others can make health care decisions – including the decision to withhold or withdraw life-sustaining treatment – where a patient lacks the ability to make decisions and did not leave prior instructions or execute a healthcare proxy.  This law only works for patients who are in an institutional setting, that is, hospitals and residential health care facilities (nursing homes).  (Click here for lots of additional information about this law.)

But the thing about this law is that it lists possible decision-makers in order of priority – and the law may not always make the correct assumptions about whom the patient would want to be making decisions.  You can easily imagine a situation where an incapacitated patient without a healthcare proxy has separated from her husband, and her boyfriend wants to make a medical decision for her – but because the law places a spouse near the top of the list, the boyfriend would, according to the letter of the law, not be able to make decisions if the husband showed up and announced that he wanted to make them.  A properly executed healthcare proxy will eliminate this possibility.

What is needed to execute a healthcare proxy?

A healthcare proxy is a pretty simple document.  Click here to see an example.  The principal just needs to sign it in front of two witnesses (neither of whom can be an agent); no notary is needed.  Nor is an attorney required; and in fact, many social workers routinely help their clients prepare healthcare proxies.  And the NYS Department of Health website has links to forms in several different languages; click here to find this website.

You’ll note that the form has space for the principal to indicate her wishes in regard to organ donation.  This section is optional.

Make sure that the phone numbers of all agents appear in the proxy, so that the agents can be contacted in the event of an emergency.

Where do I sign?

This may sound like a silly question, but the standard form can be a little confusing in this regard.  The principal needs to sign at the top of the second page of the form, under Section 5 (“Your Identification”).  I have seen healthcare proxies prepared by lawyers where the principal signed under Section 6 but not Section 5 – a big mistake!

After you’ve signed a Healthcare Proxy, are you done?

No! There are other things that someone should do along with signing a healthcare proxy.

Talk to your family!

First, the person signing the healthcare proxy should talk to her family about what she would want in terms of medical treatment at the end of your life.  One part of this conversation should include the subject of what is known as “artificial hydration and nutrition” – that is, nourishment and water provided by feeding tube/ intravenous line.  In order for a healthcare proxy agent to make decisions about artificial hydration and nutrition, the agent must “reasonably know” the principal’s wishes on the subject.  Where this is the case, the following language can be inserted under “Optional Instructions” (Section 4 of the form):  “I have discussed my wishes with my health care agent [and alternate agent(s)], and they know my wishes including those about artificial nutrition and hydration.”

Sign a medical-records release

A healthcare proxy agent often will be able to obtain access to the principal’s medical records just by presenting the proxy. However, you will notice that the form says nothing about medical records.  Therefore, it is wise to prepare, in conjunction with the healthcare proxy, a medical-records release that will give the agent access to records.  An example of such a release is available here.

Make copies!

The NYS Department of Health has directed that medical personnel should accept photocopies of healthcare proxies in lieu of originals.  Therefore, after one has signed a healthcare proxy, lots of copies should be made.  One copy should be kept in a conspicuous place at home, like on the fridge, and the others should be distributed to the healthcare proxy agent and successor agent, and medical providers.

How can VOLS help?

Although you don't need a lawyer to prepare a healthcare proxy, our volunteer lawyers will help a client prepare one along with a package of other life-planning documents.  So please continue to talk up this service with your clients, and to refer them to us via our free legal clinics or via a direct referral by fax or e-mail.  And, as always, don’t hesitate to call or e-mail me or Vanessa Diaz with any questions or concerns.