Health Proxy Basics

Summary:
R. Edward Townsend, Esq. suggested that we make a few more points on living
wills and health proxies. Ed offers his comments from a New York law perspective but the comments
really have wide applicability to wherever you might be. The comments, as is
Ed’s style, are practical, to the point (well before I threw in my two cents)
and real. Ed, in offering his practical insights, continues a process begun
many decades ago. I clerked with Ed and his firm in law school, and no young
attorney could find a finer mentor then Ed.  We appreciate the input.

√  Make certain the health care proxy
addresses nutrition and hydration (required by New York law). 2¢ Be really careful
of “standard” forms and especially cheapo internet documents. The provisions
are often woefully inadequate with respect to this important point, and in some
cases horrific in application.

√Make certain the health care proxy contains HIPAA
language.  2¢   That’s the Health Insurance Portability and
Accountability Act which created specific requirements for authorizing a person
to access your medical information. The language should clearly authorize an
agent to access your records and should include specific references to HIPAA.

√Don’t designate multiple agents.  Doctors don’t like this, and I believe it is
not allowed in some states.  I sometimes
have clients who want two or more kids involved in the decision making, in
which case I designate a primary health care agent (e.g., the older child), and
then a successor (e.g., the younger child), and then provide that the former
should consult with the latter.
Sometimes you have one kid in New York
and one in California.  In this case, I might provide that the kid in
New York has the power when the parent is in New York, and vice versa
when the parent is with the kid on the West Coast.  2¢  Even if multiple agents are permitted under
your state law, don’t do it. Emotions run high when these issues arise and even
children who always were of like mind could differ in dramatic ways making
decision making impossible.

√I steer clients away from overly specific living
wills.  I find they only confuse the
health care agent, the doctor and the hospital, and the health care problem
that eventuates is invariably one which is not specifically addressed.  Then everyone gets into the act with an
opinion as to how the exact language should be interpreted, etc.   I stress that the client should set forth
his/her basic wishes, and then select a health care agent with judgment to act
on this when necessary.  2¢  We’ve advocated
in prior articles to be quite clear about religious issues, organ donations and
burial instructions, but those are different. We fully agree with Ed. The
Myriad of medical possibilities make it inadvisable to get specific. Often when
people do get specific, the actual situation that arises is different than the
details specified in the document and confusion results.

√Make certain the living will is not part of the health
care proxy.  The doctor never needs to
see the living will.  Keep it
simple.  The only thing the
doctor/hospital needs to know is who will be making the decisions.  2¢  Agreed again, but we like to list the powers
and authorities the agent has in the proxy to endeavor to minimize situations
where a medical provider questions the scope of authority.

√A client should never appoint as health care agent
anyone, even a spouse or child, if the client remotely feels he/she will let
his/her religion get in the way.
Accordingly, no special language is needed. 2¢   We’ve opted for the opposite approach. Ed is
right, simplicity is best, but we’ve seen situations where a client’s religious
views may not be known, or erroneous assumptions made, or the professed views
of the agent are not reflective of their real attitude.

√In New York, use the statutory form.  The hospitals are familiar with it and,
therefore, can more readily accept the designated health care agent.  I even have my New
Jersey clients sign a New York
statutory form, since there is significant chance they will be treated in a New York hospital.  2¢  Good point. We haven’t done this but will
offer it to clients in the future if they wish. We haven’t had much kickback on
lawyer prepared forms that were comprehensive in the powers they’ve granted the
agent.