Are Your Living Will and Health Care Power of Attorney Worth the Paper They’re Written On?
By Barry Zimmer on May 25th, 2012 in Artificial life support, Elder Law, Estate Planning, Incapacity Planning, Medicaid, Medical legal documents
Living wills and health care powers of attorney (also known as physician directives) are widely available as fill-in-the blank forms. But do-it-yourself medical-legal forms may not be worth the paper they’re written on. Today I’ll share some state-of-the-art thinking from leading experts and my own experience with thousands of clients, on appointing the health care agent.
Choosing an “Ideal” Health Care Agent. The ideal health care agent (sometimes called health care proxy) should be an advocate for the patient with doctors and hospitals. The agent may need to manage conflict within the family. The ability to understand complex medical information and communicate with doctors when faced with stressful situations is also valuable. The agent may be the one to implement an elder relative’s wishes about artificial life support or resuscitation, so she should be able to put the patient’s wishes before her personal preferences and beliefs.
While there may be no perfect agent, there should be a “best-possible agent” from among your family and friends. Some families think children who work in medicine may be a great choice, but sometimes a life devoted to helping people get well becomes a roadblock to letting a loved one die naturally instead of prolonging death with artificial life support.
Do not assume that your spouse is the best choice. While it is understandable why you would choose your spouse or significant as agent, sometimes spouses are simply not the best choice. Because the patient’s welfare and wishes are what really count, a realistic assessment of the spouse’s suitability should be made. Does your spouse have health issues that would make it difficult to act or make decisions? Is she indecisive by nature? The pressure of having to make life and death choices can even cause emotional upset or worse in those who are advanced in age or have declining health.
Do not appoint co-agents. While attorneys have differing opinions on this and state law also varies, experts strongly recommend naming only one agent at a time, with alternates as back up agents if first choice can’t serve. If you think you want multiple adult children involved, consider these points.
There is no law that requires a doctor or hospital to honor a living will or health care power of attorney. The law simply makes it okay to honor one’s wishes about artificial life support or medical care for another who cannot speak for himself if the documents are properly written and signed. Appointing co-agents creates a chance that a doctor or hospital will decline to honor these documents if there is dissension between the agents or one agent is not available on demand.
An alternative would be a requirement that information be shared among all children, and that the agent must reasonably consult with the other adult children. But less critical decisions, such as routine medical care for an incapacitated elder, should be left to one agent. This is not a time for “majority vote”.
You may want to talk about your choice of agent with loved ones(s) you don’t name to explain their thinking. Be compassionate, e.g. “I knew it would be too hard for you to make these decisions…” Understand there is no birthright to be named the first agent. The oldest child may not be the best choice. If circumstances change, be sure to update your choices.
Choose your agent wisely. There is no second chance or do-overs if you make a poor choice. “Mulligans” are only good on the golf course.