Education

What’s a health care proxy and why do I need one?

A health care proxy (aka durable power of attorney for health care, or Advanced Directive for Health Care; Health care proxies, used in combination with living wills, are referred to as “Advanced Directives.”) is a document appointing someone to make medical decisions on your behalf, in the event that you become incapacitated.

For example, here are a couple of things an appointed health care proxy agent is provided:

  • Be given first priority to visit you in the hospital (and keep others out);
  • Receive your personal property recovered by any hospital or police agency at the time of your incapacitation; and
  • Authorize medical treatment and surgical procedures.

 
One important distinction is that the proxy doesn’t automatically go into effect but, rather, comes into effect as specified in the document. Additionally, you can set an expiration date or other conditions for it to expire. If your spouse is your agent – and you get divorced or legally separated – the proxy is automatically canceled, unless it says otherwise.

These conditions vary from state to state but most often, the document states that the proxy will come into effect only if your doctor declares that you are incapacitated.

Here are examples of when your agent would be given control:

  • You are in a coma from an accident or illness.
  • You are terminally ill and not expected to recover.
  • You have Alzheimer’s or another form of dementia, or AIDS-related disability.
  • You are under general anesthesia, when something unexpected occurs.
  • You are in a persistent vegetative state.
  • You are on a psychiatric hold or a danger to yourself.

Like other common estate planning documents, Health Care Proxy forms and guidelines can be downloaded for free from your state’s health department website, or your state’s bar association. Check out this one from New York, as an example. Just be aware that they’re written with straight, cis-gendered people in mind, so the language may be more narrow than we’d like.

But do I really need one?

For LGBTQ+ folks, or just someone with tenuous family relations, it’s especially critical to understand that if there’s no one appointed as health care proxy hospitals and courts will look to your closest biological family member to make health care decisions for you, and your friend or partner will effectively be cut out of the decision making equation.

Also, it is important to note that a health care proxy becomes ineffective upon your death. Obviously, once you’ve died, there’s no reason to make medical decisions, so it is also a good idea to implement, where applicable, an Appointment of Agent to Control Disposition of Remains form, or a will to protect yourself and your surviving beneficiaries/dependents.

For more on understanding estate planning, please see the Estate Planning 101 post.

How is this related to funeral care?

Because each state regulates the requirements for a valid health care proxy in different ways, it is important to know the requirements in your state. Where specific funeral care agents are not recognized, some courts and hospitals will depend on the Advance Directives or just authorization from your Health Care Proxy as for what to do with you, should you die. Additionally, some states, like Arizona and Florida, put provisions for funeral agents inside their Advance Directives, as opposed to having separate documents.

Check out The Funeral Consumers Alliance’s state-by-state list regarding Personal Preference Laws for Body Disposition to access your state’s preferred combination of documents.

Where should I keep my Health Care Proxy form after it is signed?

Hand it out like candy! Give a copy to your agent, doctor, and any other family members or close friends you want. Keep a copy in your wallet or purse or with other important papers, but not in a location where no one can access it, like a safe deposit box.

Bring a copy if you are admitted to the hospital, even for minor surgery, or if you undergo outpatient surgery.

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