Health Care Proxy

A health care proxy is a power of attorney used in the United States that allows an agent to make health care decisions in the event that the primary individual is incapable of executing such decisions. Even when this document is drafted, the agent cannot make a health care decision as long as the primary individual has the mental ability to do so. Health care proxies are permitted in forty-nine states as well as the District of Columbia. Health care proxies are by no means mandatory; rather they allow the patient's wishes to be followed even when he/she is incapable of communicating them.

Click here to download the New York State Health Care Proxy Form.
Click here to download the New York State Health Care Proxy Instructions.

Anyone above 18 can be the primary individual's agent. The agent must be of sound mind and judgment. Health care providers recommend that the agent be someone close to and trusted by the primary individual.

Powers and Limitations of an Agent

The agent is empowered when a qualified physician determines that the primary individual is unable to make decisions regarding health care. The agent has the power to remove or sustain feeding tubes from the primary individual if these tubes are the only things that are keeping the primary individual alive. The agent's decision stems from knowledge of the patient's desire in this matter. If the primary individual made his or her wishes clear on the proxy form, then they must be followed despite any possible objections from the agent. Beyond this matter, if there are no limitations on the health care proxy form, the agent can make most other decisions in accordance with what the primary individual would have wanted. An agent will not be legally or financially liable for decisions made on behalf of the primary individual as long as they take into account the primary individual's wishes and beliefs.

Controversial Agents

Though the primary individual can choose anyone to be an agent, the selection of treating doctors has created some controversy. Thirty nine states have enacted laws that forbid the appointment of treating physicians as healthcare proxies. If the primary individual wants a medical doctor to be the agent, the doctor cannot be directly involved in treating the patient. This limitation has been instated due to potential conflicts of interest between the patient's wishes and the doctor's choices. Advocates of this idea believe that the patient's personal values may differ from the doctor's professional values and when acting as an agent, the doctor may apply professional values instead of following the patient's wishes. Those that oppose this idea believe that not being able to choose a doctor limits their freedom of choice.

Structure of Health Care Proxy Form

Health care forms may differ in structure from state to state and pre-made forms are not compulsory as long as certain guidelines are met. The common guidelines include:

• Name and address of the agent.
• Name and address of an alternate agent.
• Duration of the proxy not indicating a duration means it's valid unless stated otherwise.
• Special instructions these can broaden or limit the powers of the agent. If the patient doesn't want to be on feeding tubes no matter what, this can be stated here. If there are certain treatments that the patient doesn't want to receive like dialysis or blood transfusion, then they must be indicated. However, if the patient wants to give the agent more flexibility with some or no restriction, this must be written.
• Name, date and signature of the primary individual.
• Instructions on tissue or organ donation.
• Two adult witnesses must sign the document stating that they have witnessed this agreement and that both parties appear to be sane. The witnesses must be 18 years or older. The agent and primary individual do not qualify as witnesses.
• Presence of a lawyer - such a person may help in drafting a document tailored to the needs of the primary individual.
• Once signed, copies of the form must be given to health care providers, the agent, spouse, and close friends. A copy should also be carried by the primary individual (in wallet or purse)

Health care proxies have become increasingly important today due to conflicts among relatives of the primary individual. The Terri Schiavo case is a famous modern-day example. Doctors tried to treat Terri for more than ten years and concluded that she was in a persistent vegetative state. Her husband wanted to remove her feeding tube, but her parents opposed it. This resulted in a lengthy court battle that raised many political, moral, and medical issues. The whole controversy could have been avoided if Terri had assigned either her parents or her husband as her health care proxy.