The Health Care Proxy is often a document given little attention by both attorneys and clients. Perhaps, the fact that the proxy form has over the last two to three decades become relatively ubiquitous is a significant factor. The proxy form is readily available on the internet, is also provided to all patients admitted to a hospital and is often available from one’s doctor.
Article 29-C of the New York Public Health Law is the statutory authority for the proxy. The proxy form allows one to designate another person to make all health care decisions if one is unable to do so.
The agent can decide whether or not you should receive treatment as well as the treatment you should receive. Additionally, the agent can determine what treatments you should not be provided and whether or not treatment should be terminated. All the above can be done by the agent in accordance with any specifications stated in the proxy form or in accordance with your wishes that are known by your agent.
As is evident, the agent is in a position of great importance and authority. Thus, selecting someone, whether or not they are a member of your family, that will make decisions about your health care that are consistent with your wishes is of great importance. Some of the factors to consider when selecting an agent and alternate agent are as follows:
- What is the age and health of the agent? Is the person selected likely to be alive at the time he or she needs to act and will he or she be mentally competent and in sufficiently good health to make your health care decision? For example, while selecting one’s spouse is often a logical decision, if one’s spouse is 80 plus years of age and has his or her own health issues, it may not be a wise decision.
- Is the agent someone I can trust to make difficult medical decisions relevant to my care and treatment? Are they astute in matters of medicine? Do they have any training in medicine or health care? While training in medicine or health care is not required, it may be an aspect to consider when choosing one trusted individual over another.
- Is the agent selected someone that is close to you and with whom you have previously discussed your writes about medical treatment? Are their beliefs about end of life treatment consistent with your wishes? Do you feel that they will respect your wishes when faced with difficult decisions?
If you are going to select a family member (spouse, child or grandchild) as your agent, are they someone who will discuss your care and treatment with your other immediate family members? Will they try to reach a consensus as to the treatment or cessation thereof with your immediate family, or will they make decisions unilaterally and without any consultation?
Selecting someone who can make a just medical decision whom you are close to and who is able to communicate the medical options and treatments with other family members is of importance. Maintaining family harmony and preventing strife is an important role for the health care agent.
In conclusion, selecting a health care agent is a decision that should not be given short shrift. It is one that requires a great amount of consideration.
Anthony J. Enea, Esq. is a member of Enea, Scanlan & Sirignano, LLP with offices in White Plains and Somers, NY. Mr. Enea is chair of the New York State Bar Association’s Senior Lawyers Section. He was named Best Lawyers’ 2019 Trusts and Estates “Lawyer of the Year” in White Plains and Westchester County’s Leading Elder Care Attorney at the Above the Bar Awards. Mr. Enea can be reached at 914-948-1500 or A.Enea@esslawfirm.com.