Understanding a Healthcare Proxy

An essential element of your estate plan, a healthcare proxy takes effect when you're temporarily incapacitated-but requirements vary by state.

by Ronna L. DeLoe, Esq.
updated September 02, 2021· 5min read

A healthcare proxy, also known as a healthcare power of attorney, is an essential part of any estate plan. Almost every state and Washington, D.C., allow healthcare proxies. A healthcare proxy, and the way it's formally executed, varies by state, but they all contain similar provisions.

What Is a Healthcare Proxy?

A healthcare proxy, known as a medical power of attorney (POA) in some states, is a document that allows you to have someone make medical decisions for you should you become incapacitated. The person you pick to make your decisions is your agent or 'attorney-in-fact' (being an attorney isn't required).

A healthcare proxy is not, by itself, used for end-of-life decisions in most cases. Rather, it's for situations where you're temporarily incapacitated, such as if you're in a medically induced coma and expected to recover, or temporarily unable to communicate about your desired treatment.

Why Do You Need a Healthcare Proxy?

A good estate plan includes more than a will-it also includes trusts in some cases, a financial POA, a healthcare POA, and a living will, which is also called an advance directive.

Healthcare POAs allow you to appoint someone to act on your behalf when you're unable to do so. You create the POA when you're competent, before anything unforeseen happens. Your POA takes effect if you're incapable of making your own decisions.

Healthcare proxies allow someone you trust to make important decisions about your medical care. Without a healthcare proxy, your loved ones can't view your medical records or request a type of treatment for you. Also, your healthcare proxy overrides what other family members may want-if there's any disagreement between relatives, doctors know to follow the healthcare proxy instead of what people who aren't your healthcare agents want.

Not having a healthcare proxy could be problematic if you need medical treatment immediately and you're incapable of deciding what type of care you want. Your loved ones may have to go to court for permission to proceed with necessary medical care, which takes time and could affect your immediate needs. The court would appoint someone, who could be a stranger, to make decisions for you. With a healthcare proxy, you can choose a trusted agent in advance-someone who will respect your wishes.

Are Healthcare Proxies and POAs the Same?

A healthcare proxy is a type of POA that allows your agent to make medical decisions for you, while a financial POA allows your agent, who could be someone other than your healthcare agent, to manage your finances when you're incapable of doing so.

Both a healthcare and financial POA work together: The financial POA pays the medical bills, while the healthcare agent makes the medical decisions. You can also have one person serve as your financial and healthcare agent.

Healthcare Proxy vs. Living Will

If you have a living will, or an advance directive, you'll still need a healthcare proxy or healthcare POA because a healthcare proxy and a living will apply in different circumstances. While a healthcare proxy applies when you're temporarily incapacitated, a living will or advance directive is for end-of-life treatment if you're unable to communicate your wishes.

With an advance directive, you can pre-plan what you want to do in the event that you become permanently incapacitated. You can list what you want in your advance directive, and what you don't want, such as allowing or disallowing:

  • Life support
  • Organ donation
  • Review of your medical records
  • Change of doctors
  • Feeding tube
  • Do not resuscitate (DNR) order
  • Life-prolonging medication
  • Person of your choice to make decisions, along with doctors, about your health
  • Intubation
  • Blood transfusions
  • Surgery
  • Staying in a hospital or going home
  • Hospice care
  • Dialysis
  • Other types of life-sustaining care
Who Can Be a Healthcare Agent?

Pick someone you trust, who will make sound decisions about your care, as your healthcare agent. It's best to have someone who's assertive and who can tell doctors what you'd want if you were able to communicate for yourself. While you must pick someone who's at least 18, it's important that your agent have similar views for your care as you would. For example, if you'd want a blood transfusion, but your agent won't consent to it for religious reasons, you'll want to pick a different agent. Choose an alternate healthcare agent in the event that your chosen agent can't act or chooses not to act for you.

A good healthcare proxy states what powers your healthcare agent has. This prevents your agent from making decisions you wouldn't want. You can limit the agent's powers, and, like an advance directive, specify exactly what you want and don't want. This way, your healthcare agent can't override your wishes or instructions.

When Does a Healthcare Proxy Take Effect?

The laws of your state could determine when your healthcare proxy takes effect. In some states, two doctors must affirm in writing that you're incapable of making decisions. In other states, only one doctor, or your treating doctor, makes that decision.

A valid healthcare proxy follows the laws of your state. You can specify that you want two doctors to affirm your incapacity, or, if your state permits it, that you want your family doctor to make the call.

How Do You Get a Healthcare Proxy?

You can create a healthcare proxy by using a state-specific form, or have an online legal service prepare your healthcare proxy for you. You can also have an attorney prepare the document.

Make sure you know your state's laws, because some states combine a healthcare proxy with a living will, while in other states they're separate documents. Some states require two witnesses and require you to have the healthcare proxy notarized.

Give a copy of your healthcare proxy to your doctor, your agent, your hospital, and anyone else you believe should have it.

A healthcare proxy is necessary for a comprehensive estate plan. It gives you peace of mind that, should you become incapacitated, your agent will take the steps you'd want.

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LegalZoom.com Inc. published this content on 02 September 2021 and is solely responsible for the information contained therein. Distributed by Public, unedited and unaltered, on 02 September 2021 18:51:02 UTC.