Advance Planning with Health Care Proxy Can Avoid Cost and Complications Later On

Much has been in the news and retirement advice columns lately about Living Wills and Health Care Proxies. Who should make medical decisions for you if you become unable to make them for your self?  Do you want every possible medical procedure employed to stay alive no matter what your condition? If you're like me, you're probably a bit confused and not sure if you should have a Living Will, Health Care Proxy, both, or neither. To help me sort it all out, I consulted an expert. Harriet Holtzman Onello is an Elder Law Attorney in Lexington. Elder Law Attorneys specialize in legal issues involving senior citizens.                    

Following is Ms Onello's response to my request for advice regarding Living Wills and Health Care Proxies.

"The recent case of Terry Schiavo has brought the question of end of life choices into the headlines. Though this was an extreme (and we hope not recurring) case, none of us would want to have strangers making our medical decisions, if we can avoid it. With just a little advance planning, you can prevent family conflicts, court involvement and publicity about your personal medical treatment. By creating and signing a Massachusetts Health Care Proxy, you can direct who should make medical decisions for you if you should become unable to do so on your own. "

For many years, Massachusetts residents who wanted to leave advance instructions about their wishes for medical treatment - or non-treatment - hovered in a legislative limbo. There was no law that specified how one could express such directions until the Massachusetts Health Care Proxy became law in 1990. That law permits a person who is of sound mind to execute a document naming a person who will act in his or her place to make medical decisions on his behalf in the event he can no longer make such decisions.

The standard by which the Health Care Proxy document comes into effect is that a physician makes a determination that his patient is no longer able to understand the nature of his illness or the nature and consequences of any proposed treatments. Once a physician determines in writing that the patient is incapable of giving informed consent, the physician is authorized by the Health Care Proxy document to consult with the appointed Agent.  

It is a good idea to name a first choice for Agent and a second choice, so that the physician can contact the Alternate Agent if the first named Agent is unavailable. The Agent is authorized and obliged to consult with the physician, to become familiar with the patient's medical situation, and then to make the medical decision that the patient would make if he were still competent.  This is a difficult position for the Agent who must be aware of what the patient would want and to advise the physician accordingly. The Agent may make a decision based on his personal assessment of the patient's best interests only if the Agent has no idea of what the patient would want under the particular circumstances.

The Massachusetts Health Care Proxy law does not contain any provisions for listing specific treatment wishes. It is simply a designation of the person you want to make the decisions for you.  Giving your physician a copy of your Health Care Proxy provides the physician with the name, address, phone number(s) of your Agent and Alternate Agent. It is also a good idea to have the Health Care Proxy contact information on an emergency information card in your wallet, glove compartment, and on the refrigerator door.

Many persons choose to make formal statements about their specific treatment wishes, in the form of a so-called Living Will.  While I encourage clients to discuss their wishes with the persons whom they name as health care Agents, and even to write wishes in a letter or memorandum, I discourage patients from putting specific wishes into the Health Care Proxy document itself or from filing statements like a Living Will with their physicians.

My reason for advising against Living Will statements is that our wishes for medical treatments can change over time. Treatment choices depend very much on the particular medical condition that the patient is facing at any given time. Abstract statements made when the person is in good health probably will very likely not apply to a particular illness or prognosis that the person may face at a later time.      

Probably the best way to help your health care Agent understand what you would want in a particular medical situation is to discuss these issues together. Of course, this is more easily said than done, because we all have a million ways to avoid the subject of our mortality or - even more dreaded - our loss of capacity. There are a number of helpful materials available to channel your thoughts and discussion of this difficult subject.  Some websites that lead to materials for considering end of life issues are: http://www.elderweb.com. http://www.medicaldirective.org, http://www.agingtwithdignity.org/5wishes.html, http://www.abanet.org/aging.

The Massachusetts Health Care Proxy is a simple document, very often available at hospitals or physicians' offices, that is inexpensive to create, sign and duplicate. It is not necessary to involve a lawyer in the preparation and signing of a Health Care Proxy, though there should be two witnesses to your signing.  Signing such a document is a very important first step to assuring that your medical choices will be made according to your wishes and intentions and without newspaper headlines.
If you continue to have questions or need further advice, please contact Ms Onello directly at (781) 862-4507. Also, Home Instead Senior Care (781-402-0060) has refrigerator magnets available where you can note your Health Care Proxy contact information.

Jack Cross is president of Home Instead Senior Care a provider of companionship and home care for the elderly. He can be reached at 781-402-0060.