Are health care proxies necessary?

By Linda M. Toga, Esq.

The Facts: My daughter told me that I should have a health care proxy.

The Question: What is a health care proxy and should I have one?

The Answer: A health care proxy is a legal document recognized in New York  State by which competent adults appoint a person to make medical decisions for them in the event they are unable to make those decisions themselves.

Unlike a power of attorney that may be effective immediately upon signing, a health care proxy does not become effective unless and until you are no longer able to make health care decisions. Although only one person can act as your health care agent at a time, in your health care proxy you should name an alternate agent in case the first person you name is unavailable.

In a health care proxy you may give your agent unlimited authority or you may list the circumstances under which your agent can act. However, if you want your agent to be able to make decisions concerning artificial nutrition and hydration, you must specifically state in your health care proxy that your agent has the authority to make decisions about these life-prolonging treatments. You must also mention the Health Care Insurance Portability and Accountability Act, or HIPAA, in your proxy. Most health care proxies prepared prior to 2003 are no longer valid because they lack the required HIPPA language.

Most people assume that health care proxies are only used in cases where an elderly patient is unable to make end-of-life medical decisions. However, health care agents may also play an important role when a younger patient is temporarily unconscious. Since people of all ages may lose consciousness or even slip into a coma as a result of a serious illness or injury, I recommend that every adult sign a health care proxy to avoid conflict between family members and to ensure that their wishes are honored.

It is important to discuss your wishes with the agents you name in your health care proxy so that they know what types of treatments and procedures you find acceptable and which ones you may not want to receive.

Although New York State passed a statute in 2010 called the Family Health Care Decisions Act (the FHCA), which gives people the authority to make health care decisions for loved ones who did not sign a health care proxy, having a health care proxy is preferable because it gives you control over who will be making decisions on your behalf.

If your health care provider relies upon the FHCA to identify the person who will decide whether or not to provide life-sustaining treatments, the statutory decision maker may not know your wishes and may not be able to make the hard choices that are often faced by health care agents. In contrast, if you named a health care agent in a health care proxy and discussed with that agent your wishes, it will be easier for the agent to take the necessary steps to honor those wishes.

Linda M. Toga, Esq. provides legal services in the areas of litigation, estate planning and real estate from her East Setauket office.