Q. I have been diagnosed with a certain disease and have scheduled surgery. The physician specialist’s receptionist recommended that I execute a health care proxy. How do I do this?
A. A health care proxy (HCP) is a legal document by which a principal (you) makes your health care wishes known and appoints an agent (and successor agent) to make health care decisions. The first thing you should know is that if you are well (read: mentally well, you know who you are and are capable of understanding the options before you including surgery, medication, procedures, choice of hospital, etc.), NO ONE else may make any health care decisions for you. Not your spouse, child, doctor, or anyone else.
As long as you are mentally competent, your decision on healthcare decisions governs even if you disagree with everyone else’s recommendations. Moreover, the HCP itself will not overrule your wishes. The document only comes into play if/when you are not mentally capable of making your wishes known or understanding your health care options (e.g. coma, dementia, etc.)
The time to execute an HCP is before you need it. If a principal (in this case, You) lacks mental capacity, the principal cannot make or sign these documents. What happens then? Under New York State law, no one can make healthcare decisions for another adult absent an enforceable and valid HCP. With no HCP, the doctor makes all healthcare decisions, which may not comport with your wishes. When you have an HCP in place, You decide how healthcare decisions will be made for you and who will make them.
In my opinion, the most important component of the HCP is the appointment of an agent. The choice of an agent is one to which you should give considerable thought. That person will make possibly difficult ‘life or death’ decisions for you. A second important issue for you to determine is whether in a case where there is no reasonable expectation for your recovery from extreme physical or mental disability, that you allowed to die (Do Not Resuscitate) or Kept Alive at All Cost. Consider if the agent you have in mind (and the successor agent(s) if the primary agent cannot act) will respect your wishes. I strongly recommend that you have a sit-down discussion with the proposed agents before you sign the document to make sure they are willing to act in that capacity if the need arises.
Other issues included in an HCP include: burial or cremation instructions, administration of pain medicine, a HIPAA release to allow your agent access to your medical records and bills, and anatomical gifts of any needed organs and/or tissues.
How do you execute an HCP? Schedule an appointment with an estate planning attorney who will discuss all of the above-mentioned issues with you and prepare the appropriate legal document for your signature – hopefully, well before your scheduled surgery.
W. Zehava Schechter, Esq. specializes in estate planning, administration and litigation; real estate law; and contracts and business law. Her law practice is located on Long Island. Please send your comments to SchechterLaw@gmail.com. Her podcast, the LI Law Podcast, may be downloaded on itunes, Google Play, Spotify, Stitcher, or wherever you get your podcasts. The podcast website is: https://lilawpodcast.podbean.com.
No column is a substitute for competent legal advice. Please consult with the attorney of your choice concerning specific legal questions you may have.