A health care proxy states who you want to make medical decisions for you if you’re not able to make them yourself. A living will provides a roadmap as to how you want those decisions to be made. It’s a very good idea to create these documents, and to review them on a regular basis.
Here are some things to consider:
Has your state recently adopted a “standard” health care proxy form? Some states have adopted a particular form by law. It might not be necessary to use this form, but you might want to do so, because doctors and hospitals will be more familiar with it and using it might avoid delay and confusion about whether to accept a document.
If you spend a significant amount of time in another state, you might want to see if that state has adopted a standard form as well. There’s no harm in having multiple forms – as long as you name the same person as your agent!
Does your document mention HIPAA? The Health Insurance Portability and Accountability Act, or HIPAA, protects your medical privacy. The law generally became effective in 2003. So if you have an older health care proxy or one that doesn’t specifically mention HIPAA or waive your rights under the law, your agent could have a hard time accessing your medical records in a crisis. Be sure you’ve updated your proxy with reference to HIPAA so that your doctor can talk freely with your agent and tell him or her about your condition.
Has your medical condition changed? If you have recently developed a condition that could land you in the hospital – diabetes, MS, or any other long-term problem – you might want to talk with your doctor about the specific issues that could arise with that disease, and update your living will with your instructions.
Have you thought about nutrition and hydration? It’s not easy to think about these issues, but it’s very important to do so, and it can save your agent from making difficult decisions without knowing your wishes and agonizing afterward as to whether he or she did the right thing.
Some people executed a living will long ago from a book or from the Internet. A lot of these “cheap” forms have very inadequate provisions for nutrition and hydration and can create serious problems in real-life situations.
Be careful with multiple agents. If you’ve named more than one person as your agent, consider whether they still get along and will be able to agree when making decisions.
Lately, it’s happened that some doctors and hospitals have been confused about what to do if there are multiple agents. They might be unwilling to follow one agent’s instructions without the other agent being present, even if the other agent would agree with the decision. It might be good to clarify that multiple agents can independently make decisions for you.
If you have children who live far apart, and you spend some time near each of them, you might provide that the first child will be your agent if you’re in state A and the second child will be your agent if you’re in state B.
Don’t be too specific. Unless you have very strong wishes, it’s usually not a good idea to be highly specific about medical treatments in a living will. It’s better to state your general philosophy about later-life care, and allow your agent to make specific decisions based on the details of the actual situation that arises.
On the other hand, it’s good to be very specific about certain non-medical things, such as organ donation, burial instructions, and religious preferences. These can be very helpful to an agent and to family members at a difficult and stressful time.
Is your health care agent also your power of attorney? Most people will name the same person in their health care proxy and in their power of attorney, but there might be reasons not to do so – for instance, the person you trust most to make medical decisions might not be good with money. That’s okay – but keep in mind that the two could come into conflict. For instance, your health care proxy might decide that you need round-the-clock care at home, but the person who has power of attorney might think a nursing home is better and refuse to pay for 24-hour care. If so, a court would have to decide between them.
If you name different people, it’s a good idea to be more specific about your wishes in order to try to head off conflict.
