By: Bob Wolf
In my last blog post, I discussed why your “Living Will“ might not provide you with the kind of legal protection you need in the event of advanced illness or permanent unconsciousness. We strongly recommended that you appoint a “Healthcare Proxy” (agent) who can make healthcare decisions for you when you are unable to do so yourself.
Who should you appoint as a Healthcare Proxy?
Let’s begin by discussing who cannot be your proxy. Although state rules for the appointment of proxies can vary, in virtually every state you cannot pick anyone under the age of 18 or your healthcare provider. This includes the owner, operator, or employee of a health or residential care facility that is providing you with care, because of the potential conflicts of interest that can arise. There are exceptions where the owner or employee is your spouse or close relative.
Now let’s consider the attributes that you want in a health care proxy. It is important to consider that the person you are closest to, e.g. your spouse or children, may not be the right person to be your health care agent.
Your health care proxy is going to be making critical health care decisions for you. They should be someone you absolutely trust and that you feel is completely loyal to you. So it is not hyperbole to say that your appointed agent is someone that you literally must trust with your life.
What should you consider when choosing a Healthcare Proxy?
A primary consideration is whether they will be available when needed. And the first step in considering their availability is asking them whether they are, in fact, willing to take this role on. Being a healthcare proxy is a great responsibility. It is critically important to have an honest conversation with your potential proxy as to whether they are willing to take on what can be an emotionally draining and time-consuming burden.
Considerations of availability also include whether they live close by or could easily travel to be with you when necessary. How busy or burdened are they are by in their own lives? Do they have business, family or personal health care concerns that take up most of their time? And in considering availability, considered not only their current availability but future availability as well.
What should you expect from a Healthcare Proxy?
Your health care proxy should be willing to speak on your behalf and have the assertiveness necessary in order to make sure that your wishes and values are adhered to. This means that they are able to handle any conflicting opinions of other family members, friends or even medical personnel. They may also be required to confront an unresponsive doctor, institution or legal department.
In order for them to successfully assert your wishes, they must know you well and understand your values and priorities. They must also be able to separate their own feelings, values and religious beliefs from yours. It is this last issue that I have frequently seen create problems. A patient appoints a close relative as proxy who then cannot carry out the patient’s wishes because he or she feels it violates their faith or the faith of the patient.
Your health care proxy should be able to understand and evaluate complicated medical care information and decisions – and then recognize how your values and wishes relate to that specific situation.
But your health care proxy will be only able to assert your values and preferences if you take the time to communicate them with him or her. In our next posting, we will discuss the best ways to do that.
Robert Wolf has a long and distinguished career in aging, health, law and philanthropy.
Bob was one of the first lawyers in the United States to specialize in elder law and counseled thousands of families grappling with complex legal issues. The strategies he helped devise are still used today by lawyers in this rapidly growing field.
Bob has also held leadership roles in many of the nation’s foremost aging organizations, including AARP, the National Council on Aging (NCOA), the New York Academy of Medicine (NYAM), the Brookdale Center on Aging, HealthCare Chaplaincy and the Coalition to Transform Advanced Care (CTAC). Bob has also served as a senior advisor to the SC Group, one of the country’s largest and most important foundations in the field of geriatrics, and directed aging and health care funding for the New York Federation of Jewish Philanthropies.
Bob is a sought-after public speaker who has taught both consumers and professionals about law and aging, geriatric policy, and advanced care planning. He has authored and co-authored publications on aging and the rights of caregivers including the seminal work “Law and Aging” and, most recently, “How Can States Support an Aging Population? Actions Policymakers Can Take.”
Bob earned a J.D. from Brooklyn Law School, a master’s degree in Urban Planning from Hunter College and a post-graduate certificate in not-for-profit management from the Columbia School of Business.