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  • Steven Maffei

What is a Health Care Proxy?

A health care proxy is an important piece of your estate plan. It enables you to appoint an agent to make health care decisions for you once a health care provider determines that you cannot make your own decisions. A “health care decision” relates to any treatment, service, or procedure to diagnose or treat your physical or mental condition. You may grant your agent as much power as you want. You can appoint your agent to make all of your decisions or only certain ones. Once you are able to once again make your own decisions, your agent’s authority ceases.

Who should you appoint?

· Someone over the age of 18 that you trust to make decisions.

· Someone comfortable making difficult decisions.

· Someone who lives nearby in case they have to respond to a medical emergency or meet with your medical providers.

You can also appoint an alternate agent in case your agent is not able or is unavailable to make the decisions for you. Once your agent is available, your alternate agent’s authority ceases. For example, a principal lives in Brooklyn and wants her daughter to be her health care agent. However, her daughter lives in New Jersey. The principal has a good friend who lives across the street. The principal can name her daughter as her agent and her friend as an alternate agent. In the event of an emergency, the friend could then make the principal’s decisions until her daughter arrives.

Who cannot be your agent?

· An operator, administrator, or employee of the hospital or facility where you are admitted who is not related to you.

· A physician or nurse practitioner who treats you.

· A person who is not related to you that is presently the health care agent for 10 people.

You should give copies of your health care proxy to your agent, family members, and all of your health care providers. You should also keep your health care proxy in a safe place that your important contact person knows about and can access. You should not keep your documents in a bank safe deposit box because the person who needs them may not be able to access them.

It is important to discuss your decision to appoint someone with him or her before they are appointed to see if they are willing to serve and to let them know how your wishes and beliefs. They should know things like whether you want life support if you are in a permanent coma, if you want artificial nutrition and hydration, if you would want certain procedures if you are in a terminal condition and if you wish to be an organ donor. You should also state your intentions directly on your health care proxy so that your intentions are clear. Your agent will be bound by what you state and cannot deviate from those instructions. An agent is not liable for decisions made in good faith. An agent cannot be required to personally pay for your health care costs.

Even if you are in good health, you should have a health care proxy. Things like surprise illnesses and accidents are facts of life and you must be prepared for them. Appointing someone to make decisions can also avoid conflict among family members. Also, clearly stating your wishes takes away the added stress of your loved ones trying to figure out your wishes and second-guessing any decisions they would have to make.

A health care proxy does not allow your agent to make non-health care decisions. You have to give your agent those other powers through a power of attorney.

Although you do not need an attorney to draft a health care proxy, we suggest that you consult an experienced estate attorney who can assist you because an attorney may spot issues you did not know existed and this document in just one piece of your plan which you should develop with an attorney.

The preceding is for factual information only and is not intended to be legal advice. You should never attempt to address any of the issues raised here without the assistance of an attorney.

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