In the second part of our series on Fiduciaries, we will explore the important role of the health care decision maker. This person may be called a Health Care Proxy, Health Care Directive, or Health Care Power of Attorney. In Massachusetts, we call this person the Health Care Proxy, and I will use that term in this post.
What is a Health Care Proxy?
A health care proxy allows you to appoint someone to make medical decisions for you, if you are incapable of making decisions or unable to communicate your own wishes. The person that you designate, will stand in your shoes, and make the decisions for you. The health care proxy is only allowed to act while you are incapable of making decisions. Given your condition, a health care proxy may need to decide whether you should have a ventilator, dialysis, feeding tube, blood transfusions, and other life- saving or life-prolonging options. For example, if you went into a coma, for 24 hours but then woke up, your health care proxy would only have the power to make medical decisions for you during that 24 hour period.
Who should I choose as my Health Care Agent?
When choosing a health care agent, it is important that you pick someone that will honor your wishes. If you pick someone to be your agent, you should let them know how you feel about aggressive treatment when faced with a situation where you likely won’t recover.
Questions to ask the person that you want to appoint?
Here are a few questions to ask anyone that you consider appointing to serve as your Health Care Proxy or decision maker:
1. Are they willing to serve as your health care proxy?
2. You don’t expect them to become your caregiver, but if you had a medical emergency, would they be willing to come and visit you in person to assess the situation?
3. If they do not live locally would they be able to come to visit you and get involved?
4. Would they be willing to make sure your wishes are honored?
5. If you are hiring a professional, what are the anticipated charges?
What if I don't have anyone to appoint?
There are many seniors who don't have any close family members or friends to appoint. If you don't have anyone to appoint, in some cases, as elder law attorneys, we are willing to act in this role, or we can recommend a social worker.
Why do I need a Health Care Proxy?
Without a health care proxy, if something unexpected happens to you and you can no longer make decisions for yourself regarding your health care, the court will need to appoint a guardian to make decisions for you. The decision will be out of your control. In some cases, a stranger could be appointed to make important life or death decisions for you. If you have a health care proxy document in place, but the person you named to serve for you is unable or unwilling to serve, a guardianship will be necessary, as someone will need legal authority to make decisions for you. The process is expensive and you will pay for all costs, fees, expense, and the guardian’s time.
How can I get a Health Care Proxy document?
In our office, we include the Health Care Proxy as part of your estate plan. It is best to have a document drafted by an attorney rather than your doctor or hospital, as it may not include all the necessary legal provisions. However, something is better than nothing, so if you cannot hire an attorney to prepare your estate planning documents, you may be able to find a form online or get a form from your doctor. However, it is important to ensure it is executed properly, and you will need witnesses present when you sign.
Who should have a copy of my health care proxy?
Your health care agent and your physician should each have a copy of your health care proxy document and any advanced directives.
What is an advanced directive?
An advanced directive (also called "A Living Will") provides your health care agent with instructions on what type of care you would like. It provides greater details about your wishes regarding life support. An advanced directive, is a document that provides guidance to your health care agent. However, an advanced directive is not legally binding and it is not enough, as if you are missing the health care proxy and cannot make decisions for yourself, guardianship will be necessary. It is important that you pick an agent you can trust to make decisions according to your wishes.
What is a "DNR" Order?
A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a health care proxy, which only goes into effect if you are unable to communicate your wishes for care. Everyone can benefit from a health care proxy and advanced directives, while DNRs are only for very elderly and/or frail patients for whom it wouldn't make sense to administer CPR. A DNR is also not enough, as guardianship would still be necessary if you were unable to make decisions for yourself.
Choosing someone in the important fiduciary role of Health Care Proxy empowers you to ensure your medical wishes are honored, even in challenging circumstances. Please check back for the next part of our series, where we'll continue to discuss the important fiduciary role of the Power of Attorney. Proactive planning is the key to securing your future.
If you live in the Boston, Massachusetts area we may be able to assist you. Whether you need guidance on choosing your fiduciaries, implementing your estate plan or you would like to hire us to serve as your professional fiduciary or backup, we are ready to help. We also offer our Aging Allies program, to support those who want to hire us to act as their professional fiduciaries. To learn more, please call us at 617-489-5900 or use this link to schedule a free consultation: https://seniorsolutions.as.me/initialconsult. If you live elsewhere, please visit www.SoloAllies.com for a directory of professionals who help seniors planning on aging alone thrive, including a directory of professional fiduciaries.
At Senior Solutions, we are caring Boston, Massachusetts Elder Law attorneys, serving all of Massachusetts, and ready to help you with Medicaid and MassHealth Planning, Estate Planning, Guardianship, Conservatorship, Probate, and Special Needs Planning.