Staying in Control The Health Care Proxy Is a Tool for All Ages

It’s a possibility no one wants to think about: you’re involved in a serious car accident, and an ambulance rushes you to the hospital. Once you’re stabilized, doctors need to make quick, possibly life-altering decisions about your treatment – but you’re unconscious. How can you make your wishes known?

That’s a scenario that can play out at any moment in life, from the teenage years well into old age. Yet, many younger Americans don’t consider the need for appointing a health care proxy, dismissing it as a matter for senior citizens. That’s a mistake, experts say.

“When people talk about health care proxies, they don’t necessarily know what it means,” said Jeff Roberts, an attorney with Robinson Donovan in Springfield. “Sometimes, when they say health care proxy, they’re actually talking about the declaration loosely referred to as a living will, which gives instructions about heroic, life-saving procedures, and situations like the Terri Schiavo case” – in other words, decisions about circumstances under which a person would like to be kept alive or not.

A health care proxy, on the other hand, is a document that appoints someone to make basic health care decisions for an individual who has been rendered mentally incapable, whether temporarily or long-term, of making such decisions. It’s a narrowly defined power of attorney that gives authority to a trusted friend or family member, in theory promising a greater chance that a patient’s wishes will be followed even when he or she is incapable of communicating them.

And although many older Americans create proxies at the same time they create wills and other estate-planning measures, they’re really for everyone, Roberts said.

“You’re appointing someone to make health care decisions for you if you’re incompetent to make them,” he said. “It has nothing to do with terminal illness or permanent unconsciousness. It can involve anything from treating a broken arm to taking certain drugs to getting shots — anything involving health care at a time when you’re not mentally able to make decisions.”

This month, The Healthcare News delves into why health care proxies are not just the domain of the elderly, and how they allow people to remain in control even when their bodies and minds are not.

Terms and Conditions

Roberts said that, because of confusion over the terms ‘health care proxy’ and ‘living will,’ people sometimes think of cases such as Schiavo, a Florida woman in a persistent vegetative state whose family became locked in a heated debate – one that played out on the national stage – over whether she would have liked to go on living. A judicial order led to the removal of her feeding tube and her death in 2005, but a living will would have resolved the issue with less acrimony and legal action.

“In the case of a health care proxy, you can be as healthy as a horse, but in a position where doctors are looking for consent to perform an operation, for example,” Roberts said. In immediate, life-or-death situations, hospitals will treat incapacitated patients, he stressed, but when there’s a gray area, a previously prepared health care proxy can cut through the tangle of privacy issues that surround tough decisions.

Attorneys say parents need to discuss proxies with their children, especially when they go away to college, often far from home. The landscape for privacy issues is different in the years since the Health Insurance Portability and Accountability Act (HIPAA) was passed, and parents are often surprised at the hurdles they must now overcome to be involved in their children’s medical decisions – unless they’ve been named a proxy agent.

“Although you consider this person your child, under the law, once he or she turns 18, under HIPAA, the medical care community treats him or her as completely separate and distinct from you, and owes that child full confidentiality unless he or she has executed a health care proxy or a medical authorization form allowing you to make such decisions,” said Lisa Halbert, an attorney with Bacon & Wilson in Northampton.

“Just because you are the parent of a child does not give you carte blanche to obtain information concerning your child’s medical circumstances with a health care provider, doctor, or hospital,” she added, explaining that only a properly signed and notarized proxy can require a facility to share medical information.

Once the document is signed, Halbert suggests parents get copies of it to the child’s college health service, primary care physician, and possibly the glove compartment of his or her car. “Regretfully, we’ve all heard of the rare situations where a freak accident occurred during a long drive, scuba diving near Baja, or having a bit too much fun out for the night with friends.”

College-agers who are leery about privacy issues with their parents needn’t fear, Halbert noted, because even with a proxy, a doctor may only discuss the patient’s immediate medical condition under very narrow circumstances – specifically, conditions that require quick action for someone incapable of making them.

“Therefore, your child’s privacy is protected,” she said. “For example, you can’t get information about pregnancy or eating disorders under this document as long as your child exhibits the ability to make informed decisions and communicate them.”

Halbert noted that there are circumstances when medical providers will slip up and allow a parent or friend more information than warranted, but under HIPAA, medical providers’ hands are technically tied with how much they can share. The health care proxy, she stressed, eliminates all questions.

It also protects physicians, at least in Massachusetts, where state law frees providers from legal liability when carrying out a decision made through a proxy. In addition, physicians are not required to carry out decisions that conflict with their moral or religious beliefs, but should work to transfer the patient to another doctor or facility that will carry out the proxy agent’s decision.

Because of the possibility of conflicts of interest, real or perceived, Massachusetts is one of 39 states that bars treating physicians from serving as a patient’s proxy agent. Furthermore, if a proxy is carried out upon admission to a hospital, no employee of that facility not related to the patient by blood may serve as the agent.

Don’t Hide It Away

Although many people have an attorney draft a health care proxy, Roberts said, people can also find the documents online. When he prepares the proxy, he generally has the client sign in duplicate so he can keep a copy; then he instructs the individual to make copies for the proxy agent or whomever else might need one. Obviously, it makes no sense to lock the only copy away, he said, noting that one elderly client keeps a copy hanging on her refrigerator to alert EMTs who might respond to a medical emergency at home.

In addition, Roberts said, he’d be rich “if I had a dollar for everyone who had a health care proxy and forgot they had one,” a situation that can cause confusion because hospitals require patients to fill one out upon arrival in the emergency room. If a patient has a current proxy designating his sister, and then hastily lists his brother on the hospital paperwork, the sister no longer has authority over the patient’s health decisions if an incapacitating situation arises.

“Every time you sign a new health care proxy, it overcomes the old one,” he said. “That happens; it’s not a perfect world.”

Still, he said, it’s an effective tool, and one that people shouldn’t wait too long to consider. “Certainly, the elderly think about it more than other people, but this is something that’s recommended for everyone,” Roberts said. “Accidents can happen to anyone, at any age.”

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