Name the best person to direct your medical care if you are unable to do so yourself.
When you make a durable power of attorney for health care, the most important decision you will face is deciding who your health care agent should be. (In your state, this person may also be called a health care proxy, surrogate, or attorney-in-fact.)
Most people name their spouse, partner, a relative, or a close friend as their health care agent. What's most important is that you trust the person absolutely -- and that you feel confident discussing your wishes for medical care with him or her. Your agent need not agree with all of your wishes, but must completely respect your right to get the kind of treatment you want.
In case you don't know, a durable power of attorney for health care gives another person authority to make medical decisions for you if you are unable to speak for yourself. (For more information, see
Living Wills and Powers of Attorney for Health Care: How They Work.) In some states, this document may be called an Appointment of Health Care Proxy, Designation of Health Care Surrogate, or something similar -- but it works the same as a durable power of attorney.
Is the person assertive? Keep in mind that your agent may have to fight to assert your wishes in the face of a stubborn medical establishment -- and against the wishes of family members who may be driven by their own beliefs and interests, rather than yours. If you foresee the possibility of a conflict in enforcing your wishes, be sure to choose an agent who is strong-willed and assertive.
Does the person live close to you? While you need not name someone who lives in the same city or state as you do, proximity can be critical. If you have a long illness, your agent may be called upon to spend weeks or even months nearby, making sure medical personnel abide by your wishes for health care.
Will the person also be your financial agent? If you make a durable power of attorney for finances to name someone to manage your finances in case you become incapacitated, it's usually wise to name the same person as both your agent for health care and your agent for finances.
If you feel that you must name different people, be sure you name agents who get along well and will be able to work together. You wouldn't, for example, want your agent for finances to interfere with your health care wishes by stalling or resisting payment of medical or insurance bills, two things over which your agent for finances will most likely have control.
Though you are legally permitted to name more than one person to make health care decisions for you, you should name only one agent when you make your power of attorney for health care. This is true even if you know two or more people who are suitable candidates and who agree to undertake the job together.
There may be problems, brought on by passing time and human nature, with naming two or more people to share the job. In the critical time during which they would be overseeing your wishes and directing your care, they might disagree, rendering them ineffective as lobbyists on your behalf. Feuding agents could even end up settling their dispute in court, further delaying and confusing your care.
If you fear that those close to you may feel hurt if you name someone else to represent you, take some time to talk with them to explain your choice. Or, if there are several people you'd feel comfortable naming, you might even let them decide among themselves who the agent will be. If you approve of their choice, you can accept it -- and name the others as alternate agents in case your first choice can't serve.
You are permitted to name one or more alternate agents to represent you if your first choice is unable to take the job for any reason or resigns after your power of attorney for health care takes effect.
It's a good idea to name at least one alternate agent, but you should be as thoughtful about naming your alternates as you are about picking your first choice: Be sure to name people who will represent you well if the need arises.
If you don't know anyone you trust to oversee your medical care, it's not necessary to name an agent. In fact, it's better not to name anyone than to name someone who is not comfortable with the directions you leave -- or who is not likely to assert your wishes strongly.
If you don't name an agent, you should still complete a living will (health care declaration), stating any wishes for medical care about which you feel strongly. Even without an agent, medical personnel are required to follow your written wishes for health care -- or to find someone who will care for you in the way you have directed if they cannot.
If you do not name a health care agent, also be certain to discuss your wishes for medical care with a doctor or a hospital representative who is likely to be involved in providing that care.
Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.
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