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This chapter is from the book

Health Care Proxy

A few years ago I gave a speech to a group of people in the middle of February in Boston about estate and financial planning in which I discussed Health Care Proxies. Health Care Proxies are called by different names from state to state. Some of the other names are Power of Attorney for Health Care and Advance Health Care Directive. The fact that I gave the speech in February is a significant detail. My parents, who have lived in the Boston area all of their lives, are senior citizens (not to be confused with sophomore citizens or junior citizens). One of the little-known laws in the Northeast is that when people reach a certain age they are required to retire to Florida. It’s the law. All right, maybe it’s not the law, but it certainly seems that way. In any event, my parents go to Florida for the winter and return to Massachusetts for the spring, summer and fall. So, because my parents were in Florida, I thought I was safe making a little joke at their expense when I told the audience at my February speech that I was designated as the Health Care Proxy agent for my parents and that if my father so much as coughed, I would, as I delicately put it, pull the plug on him. The audience laughed and I went on to complete my speech. Less than six hours later, I received a telephone call from Florida. My Dad wanted to know if I had said that if he coughed I would pull the plug on him. Being the good lawyer, I looked for a way out by inquiring who had told him that. His curt response was, “That is none of your business. Did you say that?” Softening my tone, I said, “Dad, you know me better than that.” And then after a pause, “Of course, I said that. Was there any question?” “No, not really,” he said, “It didn’t even bother me. I just wanted you to know that you still can’t do anything without me finding out about it.” This was a recurring theme from my youth. It took me six months to learn that someone in the audience who knew my father’s next-door neighbor in Florida called the neighbor, who then trotted over to tell my father what his son was saying about him in Massachusetts.

The Law

Many people remember the 1990 United States Supreme Court decision commonly known as the Cruzan decision [Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990)], which did much to bring to the public attention the need for Health Care Proxies. The case involved the serious health care decisions faced by the family of Nancy Cruzan, who at the age of twenty-five was rendered comatose following a horrible automobile accident in 1983. Until her death in 1990, Nancy Cruzan’s existence was maintained by a feeding tube that provided artificial nutrition and hydration without which she would have died. Year after agonizing year her parents were dragged through the courts as they tried to have the feeding tube removed. It took a decision of the Supreme Court to finally allow the removal of the tube, whereupon Nancy quietly died the next day. The grave marker of Nancy Cruzan reads “Born July 20, 1957; Departed January 11, 1983 and At Peace December 26, 1990.” If Nancy Cruzan had a Health Care Proxy, this heart-wrenching scenario could have been avoided. Her case did much to both clarify the laws that existed at that time regarding Health Care Proxies and to encourage more states to pass such laws.

Following the Cruzan case, Congress passed the Patient Self-Determination Act, which since 1991 has required that anyone admitted to a hospital or other health care facility receive at admission, written information regarding the advance care directive laws of that particular state. In addition, each state now has laws that authorize some form of advance care directive, although some states limit the application of such advance care directives to terminal illness care.

The Trusted Ones

In the area of health care, the right to make decisions pertaining to your own treatment is an important right. Each of us has the right to choose or refuse specific treatments and medicines. We do not lose that right if we become incapacitated. We only lose the ability to communicate what are or were our wishes. It is for that reason that a Health Care Proxy, sometimes called an advance directive for health care, is important. Like a stock proxy by which you appoint someone to vote on your behalf at a stockholders’ meeting, a Health Care Proxy is your appointment of someone to make health care decisions on your behalf if you are unable to do so personally.

Without a Health Care Proxy, if you are unable to make your own health care decision, once again, as when there is no Durable Power of Attorney, a guardian will be appointed by the court to determine your medical care. Also, as when there is no Durable Power of Attorney, this process can not only be time consuming, privacy invading and expensive, but once again, the person who is appointed may not be the person you would have wanted making these decisions for you.

Your Health Care Proxy can be written broadly or specifically; the decision is yours. A Health Care Proxy is a way for you to direct the person you appoint as your health care agent to make those decisions on your behalf when you are unable to do so. I believe that it is better to state your general principles in your Health Care Proxy rather than try to be too specific. Too much specificity as to the care you wish to receive or not receive in a specific situation may create problems, since the directions contained in your Health Care Proxy may not precisely apply to your situation as it actually occurs. Your well-intended directive might serve to confuse the issue and involve the courts to determine exactly what your wishes would be in the real-life situation.

Moreover, being too specific is particularly risky because medical science is constantly advancing. The specifics you deal with in your Health Care Proxy today may not even be relevant tomorrow. Some of the standard Health Care Proxy forms used today have a confusing chart that is supposed to describe all possible situations and the kind of care you authorize or prohibit under those circumstances. Even if you understand all the information in that form (I sure didn’t), the form was outdated the moment it was first printed because of continuing new developments in medical science. Once again, these kinds of forms can result in your health care agent having to go to court for instructions as to how to interpret the Health Care Proxy in the situation in which you are found.

You may wish to discuss your care with your primary care physician while you are still healthy. Inquire as to what kinds of treatments are available under particular circumstances and what effects those treatments have. You can put whatever limitation you wish on your health care agent’s power. After all, it is your life. Some people do not want a feeding tube for nutrition or hydration, for example, under any circumstances. Others, with whom I concur, would let the health care agent decide so he or she can be flexible and adapt to any particular circumstances that occur. I believe it is best to state your general principles, such as not wanting to be maintained by extraordinary means when there is no hope of a meaningful recovery. That may seem like a very vague standard and with good reason: it is. However, the very vagueness of this standard provides your health care agent with the flexibility to deal with individual circumstances that may occur consistent with your stated wishes and desires.

Early in his career Johnny Carson had a quiz show entitled Who Do You Trust? I know you English teachers out there are already thinking that it should be “Whom do you trust?” but in any event, picking the person to make health care decisions on your behalf if you are incapacitated is an exceedingly important decision. For spouses, it is often an easy decision, with each naming the other, but whom (just in case Mrs. Gonson, my high school English teacher is reading this book) you choose as a backup agent to a spouse can present more difficulty. If you have more than one child, can you name all of your children to act jointly? Would you want to do this? Some states specifically prohibit multiple health care agents, but it is wise not to do so even in the states that allow more than one person to serve as health care agents at the same time. A better option for many people is to name one child as the health care agent with a provision in the document requesting that child to consult with siblings whenever reasonably possible, but not binding him or her to such a consultation.

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