Spring Cleaning: Do You Have a Health Care Proxy?

As I stated in this blog, I think it is important to make reviewing your own estate plan an annual tradition (I previously suggested to do it each spring right after you file your taxes).  When you review your documents, make sure you have a properly executed health proxy.  If you don’t have one then this spring is the perfect time to make sure it’s done.  You never know when that time will come when a loved one might have to make medical decisions on your behalf.  Alternatively, you never know when you will have to make a medical decision for a family member so make sure your loved ones have this very important document (there is “no right (or wrong) time to talk about it“).  I understand that this is an agriculture law blog but I believe it is important for every person (including farmers, ranchers, and agribusiness owners) to have a health care proxy.

So What Is It?

Essentially a health care proxy gives competant adults the ability to appoint an “agent” or an “attorney-in”-fact” to make medical decisions for you if you should ever lose your decision making capacity.  Health proxies can be drafted to broadly give the agent authority to make all medical decisions or health proxies the document can be drafted in order to impose specific limitations/instructions on the agent.

When Does It Come Into Effect?

In New York, the agent’s authority is only activated when your physician decides that you have lost your capacity to make health care decisions.  Until that point is reached, the agent does not have the authority to make health care decisions on your behalf.

How Does My Agent Make His/Her Decisions?

Your appointed agent should make medical decisions for you in accordance to wishes (if known) which may include your religious and/or moral beliefs.  However, if those beliefs are not known to your agent then the agent must make decisions according to your best interests.  One exeption — your agent cannot make decisions regarding artificial feeding unless he/she has specific knowledge about your belief.  Thus, it is important to identify your view in writing on artificial feeding either on the health proxy or in your Living Will. 

Can I Have More Than One Agent?

This is a state-by-state issue.  New York law does not prohibit people from appointing more than one agent (e.g., both parents, all children); however, multiple agents would not be able to act concurrently.  Due to this, the New York Department of Health recommends that each person only appoint one agent to avoid confusion.  The statute does allow for the identification of an alternate agent.

Laws governing health care proxies differ slightly from state-to-state.  Make sure you talk to a local attorney licensed in your jurisdiction before relying on a form that you found on the internet or from a universal computer program. 

Happy Good Friday and have a great Easter this Sunday to those of you who celebrate it.  It’s a wonderful time of year – time for family and enjoying the spring weather.