Peace of Mind A Health Care Proxy Ensures That Wishes Will Be Honored

No one likes to think about what might happen if they were in a serious accident or had a disease that left them unable to speak and make their wishes known.

But, unfortunately, such situations occur every day. And although people may have expressed opinions about medical measures that could prolong their life if they became ill or injured, loved ones may disagree on what is best.

Fortunately, there is an easy solution to the problem that costs $100 or less. People can create a document that declares someone their health care proxy, granting them the power to make medical decisions if a doctor declares the patient mentally incapacitated. This can result from a wide variety of circumstances, ranging from a stroke or advanced dementia to an auto accident. The document can include specific instructions, such as whether the person wants to be an organ donor or be cremated.

“Everyone who is at least 18 should complete a health care proxy after giving simple consideration to their intentions and the people they plan to appoint as future decision makers,” said Hyman Darling, an attorney with Springfield-based Bacon and Wilson, P.C., noting that it’s important to discuss decisions with the person named as agent/decision maker and provide them with a copy of the document.

Designating someone as a health care agent/proxy can reduce arguments among family members in difficult situations.

“Everyone wants to be in charge, but if a health care proxy hasn’t been appointed, no one is in charge, including the spouse,” Darling explained. And although doctors might perform surgery or proceed with treatments for a patient if everyone in the family agrees on a proposed course of action, if they disagree, the matter may end up in court and take weeks to resolve, especially if it is contested.

“It’s much better to have a health care proxy than not have one, even though there may still be family differences and a lot of emotion,” said attorney Jeffrey Roberts of Robinson Donovan, P.C. in Springfield.

If the document is prepared by an attorney, that individual can also defend it if a family member disagrees on anything. “The power to make life-and-death decisions only goes into effect if a physician declares a person mentally incapacitated. And if that occurs, the person designated as their agent is required to speak for them and act as they would act, which is not necessarily the way the agent would normally act,” Roberts said, adding that the more information a document contains, the easier it is to know exactly what someone wants and carry out those wishes.

Historical Perspective

The issue began receiving national attention several decades ago when high-profile cases, such as one involving a woman named Karen Ann Quinlan, came to light. After the 21-year-old suffered irreversible brain damage, her parents discovered they were legally barred from turning off the artificial life-support systems that were keeping her alive, even though her condition was deteriorating and doctors felt there was no hope of recovery.

Darling said this case, which ended up in the Supreme Court, and others like it cost hundreds of thousands of dollars to resolve and exact a heavy emotional toll on the families involved.

Prior to these cases, people typically assigned someone to take care of their affairs if they were unable to do so; this was often the case for soldiers who went to war. “But there was never anything legal where states allowed people to designate someone as their agent to make health care decisions for them if they became incapacitated,” Roberts said.

“This in a relatively modern concept,” he told HCN. “In the past, the health care provider had the choice of relying on the nearest relative to make decisions or having a guardian appointed by the court if family members couldn’t agree or there were no relatives.

“The system called out for order because health care providers wanted some protection,” he continued. “It’s a very cumbersome procedure to have a guardian appointed, and if two people disagree, they have to go court and fight it out. The health care proxy law created a safe haven for Massachusetts residents that resolves 98{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of these issues.”

In recent years, many states have enacted laws that allow people to sign a document which names someone to stand in their stead if anything extreme happens. “In Connecticut it’s called an advance-care directive, in Florida it’s a health-care surrogate, in Massachusetts it’s a health care proxy, while in other states it’s a living will,” Roberts said.

Documents that are legal in one state are honored by the others, and in Massachusetts the language typically found in a living will can be included in the proxy document. This language can include whether heroic measures should be taken to keep the person alive.

“Someone may only want to be given pain medication if it reaches that point,” Darling said. “And it’s a lot more stressful on the family if someone hasn’t named a health care proxy.”

He added that, if family members disagree with the person appointed as the proxy, the attorney who drew up the document can hold a family meeting.

Transfer of Power

Darling said physicians should have a copy of a person’s health care proxy form so they can release information needed to make medical decisions. He also advises clients to talk about their wishes with the person they plan to name as their agent.

One of his clients was a soldier being deployed to Afghanistan who did not want artificial measures taken to keep him alive if he was injured in the line of duty. He had planned to name his parents as his health care agents, but they told him it would be too difficult for them to carry out his directives.

Darling cited other cases where family members told a loved one they would not be comfortable doing what was asked. “The person who is appointed should be responsible, trustworthy, and able to carry out the wishes that have been expressed,” Darling said, adding that Internet tools such as Skype and e-mail make it easy for physicians to communicate with people who are geographically distant.

However, despite advance directives, decisions can still be difficult. “There is no bright line, but at least this gets rid of vagaries,” Roberts said.

Some people elect to name several individuals as agents on their health care proxy document, but Roberts advises against this. “The statue states that a person can name a proxy and an alternative,” he said, adding that listing more than one person has never been challenged in court. “But if you name three children, you may be creating arguments that the system was designed to avoid.”

Darling said a proxy document can include what is known as the ’five wishes,’ which are included in a national advance directive created by the nonprofit organization Aging with Dignity. They are:

• Who you want to make health care decisions for you when you can’t make them;
• The kind of medical treatment you want or don’t want;
• How comfortable you want to be;
• How you want people to treat you; and
• What you want your loved ones to know.

Although health care proxy documents can be obtained via the Internet, they do not usually include such provisions or language that specifies anything other than who the proxy will be. An attorney can provide that language or the person can do research and add it to the document. But the person named as proxy will need to have a copy of the document in the event of an emergency.

“Living will language makes sure there are no arguments about issues as whether to put someone on a ventilator if doctors say there is no chance of recovery,” Roberts said.

Other things people need to know are that signing a new document revokes previous documents, and that Massachusetts law prohibits an ex-spouse from making decisions if the document was written while the couple was still married. In addition, people cannot list the administrator, operator, or employee of a health care facility such as a hospital or nursing home where they are a patient or resident as their proxy or resident unless the person is related by blood, marriage, or adoption.

Keeping the Peace

Roberts says that if people want to get their affairs organized, they should appoint a durable power of attorney as well as a health care proxy, so both their financial and health care wishes can be handled in the event that help is required.

“It’s the flip side of the coin and you can name different people,” he explained. “But in the end, you need a decider, even though the person may consult with other family members. And the more you do in advance, the more it reduces risks.”

It also gives people power over what might happen to them today and in the future if their ability to make and voice decisions is compromised. “It’s simple, but complicated,” Roberts said. But it’s a powerful measure that can provide people and their families with peace of mind, which is a priceless gift.