January, 2003

Health Care Proxies

There is a lot of confusion between the Health Care Proxy and the Living Will when it comes to estate planning.  They are two very different documents, one of which (the Living Will) is not even legally recognized in this state.  Here's a basic primer on the subject:

WHAT IS A HEALTH CARE PROXY?

The Health Care Proxy is a simple document in which you appoint someone to make health care decisions for you if you become unable to make them yourself. 

WHAT CAN YOUR AGENT DO?

There are two primary things your agent can do:

(1)Access Medical Records - Your Agent will have access to

any confidential medical information necessary to make

informed decisions for you.  This can be a major problem to

some people because, even though they are entrusting this

person to make life and death decisions for them, they are

loathe to allow them to see what their medical charts reveal

about them.

(2)Make Medical Decisions - The primary role of your Agent is

to consent to or refuse any medical treatment on your behalf. 

This obviously includes treatment that could keep you alive,

like life support.  The most common phrase I hear is "I want to

appoint so-and-so to pull the plug for me."  This document

does that. 

WHAT RESTRICTIONS ARE THERE ON MY AGENT?

Because we are dealing with such a sensitive issue, there are a number of built-in safety nets available:

(1)Your Agent can only make your health care decisions while

you are unable to do that yourself.  This means that if you are

floating in and out of consciousness, your Agent can only act

for you during your "down-times." 

(2)Your Agent cannot act for you until your doctor determines,

in writing, that you lack the ability to make health care

decisions.  She must also first talk with your doctor and

consider your diagnosis, prognosis, and available treatments

of your condition. 

(3)Your Agent can't terminate your life support unless your

doctor determines that there is no reasonable likelihood that

you will ever regain a meaningful quality of life.  This can be

pretty critical because the decisions are life and death and

death is permanent.  It's not a decision that should be rushed

into.

WHAT ADDED SAFEGUARDS SHOULD YOU HAVE?

(1)Pick Your Agent Wisely - Don't just go with the next-of-kin.  

Go with who will honor your wishes and have the guts to follow

through.

(2)Explain your Wishes - Your Agent will make health care

decisions for you according to your wishes.  It is therefore

critical that you communicate these wishes to your agent. 

Don't just assume he or she will know what to do. 

SO THEN WHAT IS A LIVING WILL?

A Living Will simply sets down in writing what your wishes are relative to health care.  As noted above, they are not binding in Massachusetts.  They only serve to guide your Health Care Agent in making her decision.

So to answer the original question, a Health Care Proxy appoints a person to make your medical decisions for you, and the Living Will sets out what your wishes are in regard to those decisions.  They are pretty inexpensive documents (Health Care Proxy forms are free) relative to their importance so you would be well advised to have both of them included in your estate plan.