People, Even Young Ones, are Not Invincible Health Care Proxies Are Not Just for People 50 and Over

Facing your own mortality is a difficult concept to come to terms with. There are several scenarios that younger individuals must be aware of that may leave them unable to make their own health care decisions, and thus necessitate a health care proxy.

For example, a college student may suffer from alcohol poisoning and go into shock, an individual may have a car accident, an eating disorder may cause hospitalization, or someone may simply fall from a ladder cleaning leaves from the gutters.

The younger generation should also understand that patients are sometimes diagnosed as being in an irreversible coma, brain dead, or living in a persistent vegetative state, all of which may be permanent but not terminal. This means that you could spend the rest of your life on life support. This reality can be emotionally and financially devastating for family and friends.

The importance of having a health care proxy is not just reserved for the elderly. In the wake of the 2005 Terri Schiavo case, we also should remember the 46-year-old firefighter from Easton, Mass., Paul Brophy, and the 25-year-old Missouri woman, Nancy Beth Cruzan. All were under the age of 50, and each case was brought to the national spotlight because of the lack of a health care proxy.

On Dec. 19, 1990, Massachusetts passed a law regarding health care proxies. The law allows you to have a document in which you designate someone to make health care decisions for you in the event that you are incapacitated and unable to make your own decisions. If this does in fact occur, the person you have named will be able to step into your shoes and make decisions for you. A living will is an advanced health care directive that allows you to address your end-of-life decisions, and generally sets forth that you do not want extraordinary medical means used to keep you alive when there is no likelihood that you will recover.

In Massachusetts, living wills are not authorized by statute. However, it is important to have living will language included in your health care proxy, as it provides documentation of your intent with regard to end-of-life decisions. In the event there is ever confusion as to your intentions, the living will language can be used as a guideline by the courts to determine your wishes.

Generally, younger individuals believe they are invincible and a health care proxy is something that only parents or grandparents should think about. What the younger generation does not realize, is that if something should happen, their own values and wishes regarding health care and end-of-life decisions may be compromised if they do not have a health care proxy.

A well-drafted health care proxy contains several features. First, it clearly identifies the person creating the health care proxy, known as the principal, and the individual named by the principal to make health care decisions, known as the health care agent. In the event that the principal is physically or mentally incompetent and unable to speak for himself, the health care agent will act as an advocate, making decisions as directed by the principal at a time when he was able to speak for himself.

Second, the health care proxy should clearly state your intention to have your health care agent make health care decisions on your behalf. Third, the health care proxy should describe any limitations that you intend to impose upon the health care agent’s authority. For example, you can provide your health care agent with broad authority or you may limit their authority based on your own religious or moral beliefs. If your wishes are not clear, or if they fail to address the particular circumstance at hand, your health care agent may exercise independent judgment about your medical treatment, taking into account your best interests.

Fourth, you need to indicate that the health care agent’s authority is only effective when you lack the capacity to make your own health care decisions. This language can be tailored to meet your wishes. For example, you can provide that two doctors, independent from each other, must agree as to your lack of capacity to make your own health care decisions before authority is given to your health care agent.

Lastly, the health care proxy should include living will language, which indicates your wishes regarding your end-of-life decisions. This language should also include your wishes for not only a terminal diagnosis, but also a non-terminal diagnosis that may leave you in a persistent vegetative state. In addition, the health care proxy should designate when these life-ending measures become effective.

An additional factor to consider is the significance of sharing your desires with your health care agent by communicating them ahead of time. It is logical to assume that the designated person will be someone close to you, who will be under tremendous emotional stress when you are gravely ill or injured. Your health care agent will have the legal right to make health decisions for you, so he or she should be capable of respecting your wishes despite the weight of those decisions.

A well-drafted health care proxy can provide you with the assurance that your health care decisions are based on your own values and wishes. A significant lesson to take from the Brophy, Cruzan, and Shiavo cases is that people are not invincible, regardless of their age. Hopefully, you will never need to use your health care proxy, but in the unfortunate event that you do, it will ensure that your wishes are respected.

Brett A. Kaufman is an Estate Planning and Elder Law associate with the law firm of Bacon & Wilson, P.C. His practice includes sophisticated estate planning issues, guardianship, conservatorship and planning for long-term care; bkaufman@bacon-wilson.com.