Health Care Proxies

A health care proxy is a form of power of attorney concerning your health care decisions in the event that you can’t speak for yourself. It will be used infrequently but it is a necessary tool that you must have in order to protect yourself and your family.

If you become unconscious or cannot speak for yourself, a health care proxy gives someone that you trust the legal right to make medical decisions for you. It saves your family a lot of time and grief to have a person already named in a legal document able to makes medical decisions for you if tragedy strikes.

A health care proxy runs hand-in-hand with an advanced care directive (or living will) but may also be combined into one document. The health care proxy names a person to make your medical decisions if you can’t and the advanced care directive (or living will) gives that person some guidance as to what you would want done for you in terms of food and nutrition, heroic lifesaving measures, and other medical determinations on your behalf.

Medical personnel who are given a health care proxy that is drawn up in accordance with legal requirements must honor the decisions made by the agent (the person that you choose). And if you have discussed your preferences with your agent, they will carry out your wishes. You could also have a living will that will spell out your wishes. It takes the burden off your family of guessing who you would want to make those decisions and what those decisions should be.

In order for your health care proxy and living will to be useful, you need to give your agent a copy of the health care proxy to be available in case you can’t talk for yourself. You don’t do yourself any good if no one knows you have drawn up this document or can’t find it when you least expect to need it.

Why do you need a durable Power of Attorney

A Power of Attorney is a legal instrument that gives certain legal powers from you to another person that you designate.

Why does everyone need one? People who are in an accident or who are no longer competent to make their own decisions, need to continue to make financial transactions as long as they are alive. Who will pay the bills, make bank deposits and withdrawals, or manage your investments? Who will sign legal documents for you if you cannot, for one reason or another? A durable power of attorney will make life easier for you and your family if times get tough.

The person who signs a Power of Attorney is called the Principal.  The Power of Attorney gives legal authority for another person (called an Attorney-in-Fact) to make property, financial and other legal decisions for you.  You can give an Attorney-in-Fact broad legal authority, or very limited authority.

Obviously, you want your Attorney-in-Fact to be someone you trust. You can name your spouse or a relative or even a close friend, so long as that person is at least 18 years of age.

What does the “durable” part mean? Legally, without any specific language to the contrary, a power of attorney is good only as long as you are competent. If you put “durable” language in the power of attorney, you specifically state that it will be legally valid even if you are not competent. You can even put language in the power of attorney that states that the power of attorney will not become usable until you become incompetent.

If you don’t have a durable power of attorney and you become incapacitated, your relatives or significant other will have to go into court and start legal proceedings to get a judge to name someone to manage your financial affairs. Conservatorship or guardianship proceedings can be expensive and even embarrassing. All of the court proceedings are matters of public record so total strangers can read about your private affairs. And if relatives fight over who is to be the conservator or guardian, the proceedings will surely become even more unpleasant, sometimes downright nasty. Any court proceeding becomes expensive and the more wrangling that occurs among your relatives and other loved ones, the more everyone involved will wish that you had taken the time and effort to sign a durable power of attorney.

Decide on who you will designate as your attorney-in-fact and call your lawyer to get a durable power of attorney signed. 

 

What is a living will?

Have you heard the term “living will” and wondered what was meant? Is a living will different from a “regular” will?

A “regular” will is your last will and testament and distributes your assets to whomever you designate after you die. A “living” will takes effect before you die, when you need someone to speak to your doctors about medical decisions that you cannot make because you are incapacitated. A health care proxy is a document that names someone to make your medical decisions for you when you cannot make those decisions yourself. Sometimes, the living will and health care proxy are combined into one document.

Suppose you are in a car accident and you are unconscious. How will the hospital know what types of treatments you would accept? More importantly, how would it know what kinds of treatments you do not want?

A living will sets out those kinds of answers. It can state that you do not want breathing tubes, or surgical procedures, or CPR if your heart stops, or medications of certain types. You can pick and choose which types of treatments you would approve and which ones you don’t wish.

A living will becomes effective when you cannot speak for yourself. Your loved ones (spouse, parents, significant other) need to know where your living will is located so that they can deliver it to your doctors when it is needed. If you don’t have a living will, the doctors will take all measures necessary to keep you alive, even if you would have declined those measures if you had been able to speak.

If you do become conscious, then you can speak to the doctors about what treatments you want. At that point, the doctors might reverse some procedures they had started and no one else can make your decisions for you.

New Jersey has recognized living wills since 1990 and so long as you are over 18 years of age when you execute your living will, it is legally binding on your doctors and anyone treating you. There are specific requirements to follow when executing a living will so it is best to have a lawyer supervise the execution ceremony. Once you have signed a living will, you should carry a card telling the world that you have a living will so that in the event of an accident, the doctors will ask to see a copy of it. You should take a copy of it to the hospital when you are having any kind of procedure done.

A living will is not just for old people who are near death. It is for everyone, because you never know when something might happen to you and you can’t speak for yourself.