In most cases, your spouse, parents, adult children and next-of-kin, will have no legal right or authority to make medical decisions for you if you cannot make them yourself. If you have a Health Care Proxy, you will choose the decision maker and you will give that person guidance and instructions. If you do not have a Health Care Proxy, It may be necessary to petition the court for appointment of a guardian for you.
This can be a lengthy and complicated court proceeding. These proceedings may involve court appointed attorneys or investigators that do not know you and who may have little knowledge of your preferences. In some cases, ongoing court involvement may be required.
Health Care Proxy FAQ’s Click below for commonly asked questions.
How do I execute a Health Care Proxy?
There is no required format for a Health Care Proxy but the law sets forth certain minimum requires such as the need to identify a Health Care Agent and the minimum number of witnesses. Some medical treatment providers may have simple Health Care Proxy forms available which would be adequate. However, as a Health Care Proxy (with a Living Will) is the document you will use to appoint your agent to make your medical decisions in accordance with your wishes, it is best to have a personalized Health Care Proxy prepared for you.
Who can I choose as my Health Care Agent?
You may choose any competent adult with just a few limited exceptions. Most people choose a family member or close friend. Some people choose a social worker or lawyer. Ideally it will be someone you trust who knows you well. In addition to naming your Health Care Agent, you may designate an alternate agent who will serve if the primary agent is unwilling or unable to take up those responsibilities.
Can I have two Health Care Agents?
Yes but it is not recommended. Two co-agents acting together would need to make decisions together and would need to agree on all treatment choices. If your Health Care Proxy has been activated it is likely that you need your agent to make medical decisions right away. Having to track down two agents for approval of every decision and having to wait while two co-agents sort out a disagreement over treatment options can delay care. We recommend appointing a single primary agent and a backup alternate agent to serve if the primary agent is unwilling or unable to serve.
How is a Health Care Proxy activated?
If your attending physician determines that you lack capacity to make health care decisions, the physician can activate the Health Care Proxy. This must be done in writing and you must receive notice of the physician’s determination. Even after the Health Care Proxy is activated you will still have the right to participate in medical decision making.
What happens if I get better?
If your Health Care Proxy was activated by your attending physician and then you improve so that you have regained capacity to make health care decisions, all decision making authority will return to you. Your Health Care Proxy will then become inactive until needed again.
Can I change my Health Care Proxy?
Yes, you may change or revoke your Health Care Proxy at any time that you retain legal capacity to understand your actions.
What happens if I do not have a Health Care Proxy?
If you lose capacity to make health care decisions and you do not have a Health Care Proxy, it is likely that a Petition for Appointment of a Guardian will be brought in the appropriate court. The Court will appoint a guardian for you who may or may not be your first choice as your decision maker. The Court may appoint a lawyer to represent you and may appoint an independent investigator to report on the case. The court appointed guardian’s authority will be limited. For instance, a guardian cannot consent to treatment with certain medications and cannot authorize certain extraordinary treatments. In some cases, the court will require ongoing court involvement.