Fleming & Curti, P.L.C. - Tips To Consider When You Are Named As a Health Care Agent

MAY 22, 2006 VOLUME 13, NUMBER 47

Tips To Consider When You Are Named As a Health Care Agent

By now the message should be clear: virtually every competent adult needs to have signed a health care power of attorney AND a living will. State laws and practices may differ as to forms themselves, and sometimes as to even the names of the documents—in some states the language may be "patient advocate" or "proxy"—but the basic principle is important. What often gets lost in the discussion with lawyers is what the health care agent (or proxy, or advocate) is supposed to be doing, and how to prepare for the job.

George Cooney, a Bloomfield Hills, Michigan, lawyer, has excellent advice for health care agents. At a recent seminar for lawyers he shared the bullet-point list he provides to clients when they sign health care proxy documents. His goal: to get his clients to pass this advice along to their patient advocates, to be used when the time comes:

Family consensus is the key to success. A good health care agent starts early and works hard to assemble that consensus. If the patient can also participate, so much the better—it is extremely valuable for the patient to involve the entire family in the discussion even before the agent takes over the actual decision-making. Family members are much more likely to go along with the patient’s wishes if they were clearly expressed before they need to be applied.
If consensus simply can not be reached, the agent should make clear to everyone involved that he or she has the authority to make the decision, and that they have the right to go to court if they think the decision has been wrongly reached. In most states (including Arizona) there is a simplified procedure for the courts to address health care decisions made by agents.
Health care agents hold broad power to effect the patient’s wishes. That means the agent should be confident in dealing with family members—and with medical professionals, who often fail to accord the agent all the authority he or she may have. Do not be bullied; demand complete information, make your decisions clear, and stand on your authority.
Consider tagging along (with the patient’s consent, of course) on doctors’ visits before the power of attorney needs to be utilized. That gives you an opportunity to talk about decisions with the patient, meet the doctors and their staffs, and learn more about the patient’s condition and treatment. Your extra eyes and ears may prove to be useful, too—to both the patient and the physician.

Even before it is necessary to act as health care agent, you might ask the person who has named you as agent for permission to look at the power of attorney itself. They may think it is a private document and be uncomfortable sharing it; if so, do not force the issue. But if they are willing to give you an advance look you might spot issues and questions before they become critical—and insoluble. Among the things to look for:

Does the document include language referring to HIPAA, the federal Health Insurance Portability and Accountability Act? If not, you may find it difficult to establish the patient's inability to make decisions when the time comes. Some medical providers are overly protective of information needed to make responsible medical decisions—usually out a misguided concern about the meaning of HIPAA.
Has the patient signed a living will, completed a values statement or analysis, or given any guidance about how you will be expected to make decisions? If so, take the time to review them with the patient. If not, encourage them to give you more direction.
Are there alternates named in the document, in case you are unable to act? If you are temporarily unavailable when you are needed (on a trip, for example) will your role terminate, or will you be able to act again when you return? If there are multiple agents, must you act unanimously, or will each of you have the power to act independently?

Perhaps you need to encourage a family member or friend to complete a health care power of attorney. One excellent choice for Arizona residents is to visit the state Attorney General's website for sample health care directives forms. There's no reason you can't complete the forms for yourself, as well.