Protect Your Medical Wishes: Execute a Health Care Proxy

We would like to clear up some confusion as to how Health Care Proxies (also known as Health Care Directives in some states) differ from Living Wills.

For over a decade, Health Care Proxy Laws ( "HCPLs") have enabled persons to remain in control of their medical treatment even after becoming incapacitated. Legally recognized instruments known variously as "Health Care Proxies" or "Health Care Directives," etc., allow the signatory to delegate authority over medical decisions to a trusted agent. To be valid, the instrument must be properly signed and dated by the person granting the proxy in the presence of witnesses. Under HCPLs, every adult is presumed competent to appoint a health care agent unless he or she has been previously and legally declared to be incapacitated.

A Living Will, on the other hand, is a document in which an individual specifies only the type(s) of treatment desired in the event he or she becomes incapacitated. A Living Will can provide "clear and convincing" evidence of an individual's wishes regarding medical treatment, but is not considered a legally binding authorization for anyone to act on his or her behalf. Further, the guidance offered by a Living Will is general, pertaining only to those procedures a patient can anticipate at the time the document is signed.

Prior to the enactment of HCPLs, the Living Will was considered the best available document to express a patient's wishes. However, its shortcomings did not adequately convey the individual's intentions under the many circumstances that could not be contemplated in advance of an unexpected accident or illness.

Since a Health Care Proxy allows an individual to legally delegate decision-making authority regarding medical treatment to a person whom they trust, it is a far more flexible, extensive and legally binding document than the Living Will.

Persons drawing up Health Care Proxies, Directives, et al., should, to the best extent possible, be sure that their agents understand their wishes about their medical treatment, and specifically about artificial nutrition and hydration. We recommend that everyone with a duly executed Health Care Proxy include a copy in their medical records and, when traveling, carry a copy with them. We will also retain at our office a copy (and the original if you desire) of any Health Care Proxy that we prepare, should it be required to be faxed in the event of an emergency.

Summary:

Health Care Proxy

  • What it is: A legal document designating an individual to make medical decisions on your behalf in the event you are unable to do so.
  • Issue to consider: Who to appoint, and more importantly who not to appoint.

Living Will

  • What it is: A legal document which is useful in the event that you develop an irreversible condition that prevents you from making your own medical decisions.
  • Issue to consider: A Living Will expresses your intent but does not appoint an agent to represent your best interests.

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