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Appointing a Health Care Agent

If you were to become incapacitated and unable to make your medical decisions, who would make those decisions for you?  If you haven’t executed a formal Health Care Proxy, in which you’ve named a trusted person to make health decisions on your behalf, then you forfeit your ability to be heard on such matters should you become incapacitated.  It would then be necessary to petition the Probate Court to have you declared legally incompetent and to have a Guardian appointed to make your decisions.  That court process takes time, is expensive, and the judge may not choose the person you would have chosen

A Health Care Proxy is a written document giving authority over all decisions regarding your healthcare to a designated “Health Care Agent” if and when a physician determines that your are incapable of making or communicating those decisions yourself. By executing a Health Care Proxy, you can select the person most appropriate to make your medical decisions, ensure that that your voice is heard and that your affairs are kept private.    If you are at least 18 years of age, you can execute a Health Care Proxy appointing someone to be your designated agent.

Under Massachusetts law, a Health Care Agent can make every type of health care decision, including the use of life support systems and the administration of anti-psychotic medication.  The law is designed to minimize or eliminate the possible need for guardianship proceedings if you become incapacitated and are unable to communicate your decisions.

You can appoint just about anyone to be your Health Care Agent.  The primary exception is an unrelated person who is an employee at a hospital, clinic, nursing home, rest home or other health facility where you are staying or have applied for admission.  Since your agent is going to have the authority to make medical decisions for you in the event you are unable to make such decisions yourself, you should choose someone who understands your wishes regarding medical treatment and end-of-life decisions and who understands that they will exercise their best judgment based on your personal values. Your Health Care Agent must be capable and willing to carry out your wishes, even if your wishes conflict with their personal feelings.   If your personal wishes are unknown, then your agent is empowered to make decisions which he or she believes to be in your best interest. When choosing an agent, you should consider the person’s ability for rational thought in emotional times as the need for a named proxy to act usually arises due to a traumatic experience or severe illness.  You should also choose an alternate Health Care Agent who will serve only if your first choice is unable or unwilling to do so.

You can limit your agent’s authority.  You may wish to do so if you believe that your agent does not hold the same moral and/or religious beliefs as you do.   You also have the right to revoke your Health Care Proxy at any time.  If you name your spouse as your Health Care Agent and become legally separated or divorced, the law states that the Health Care Proxy is automatically revoked.

A Health Care Proxy is valid when signed in the presence of two witnesses.  Any person who is appointed as Health Care Agent or alternate Health Care Agent in the Proxy cannot serve as a witness.  A Health Care Proxy is also frequently notarized, although not required by law.

It is often advisable to include language similar to a living will in your Health Care Proxy as a way of providing your Health Care Agent with some guidance as to what your feelings are about withholding or withdrawing life sustaining procedures and to eliminate any guilt which may later haunt a Health Care Agent who is called upon to make the difficult decision as to whether you should be kept alive when there is no likelihood that you will recover.  By including this language you also ensure that your wishes will be honored by the person you have named to make your health care decisions.

For example, one of the most difficult decisions for an agent is whether to request removal of artificial feeding and/or hydration in the case of a “persistent vegetative state.”  Persistent vegetative state is a condition of patients with severe brain damage, characterized by a lack of cerebral function and cognitive ability, but who appear to be staring, have wake/sleep cycles and reflex movements. The persistent vegetative state was an important issue in the 1990 United States Supreme Court case of Cruzan v. Director, Missouri Board of Health.  After an automobile accident left Nancy Cruzan, in a persistent vegetative state, her family petitioned courts for three years to have her feeding tube removed. The Court initially denied the family’s request, citing lack of evidence of Cruzan’s wishes.  The family’s request was ultimately granted after they were able to provide clear and convincing evidence (as required under Missouri law) that the young woman would have wanted to have the tubes removed.  The tube was removed and Cruzan died 12 days later.

More recently, the persistent vegetative state was involved in the Florida case of Terri Shiavo, who suffered severe brain damage when her heart stopped for five minutes in 1990.  Shiavo spent the following years in rehabilitation centers and nursing homes but never regained higher brain functioning.  In 1998, her husband filed a legal petition to have her feeding tube removed, saying that his wife had told him before her medical crisis that she would not want to be artificially kept alive in such a situation.  Shiavo’s parents disagreed and fought the request.  The Court ruled that Shiavo was in a persistent vegetative state and that her husband could discontinue life support.  Her feeding tube was removed in 2003 but reinserted six days later when the Florida legislature passed “Terri’s Law,” which allowed the state’s governor to issue a stay in such cases.  The law was later ruled invalid by the court.  In 2005, Shiavo’s feeding tube was again removed and she died about two weeks later.  Shiavo spent 15 years in a persistent vegetative state.

While retirees and seniors are most likely to execute a Health Care Proxy, many younger adults should also execute a proxy.  You are not too young to be concerned about such issues.  In the cases of Nancy Cruzan and Terri Shiavo, the problems that caused their persistent vegetative states had occurred when each of them was only 26 years of age.  Had Cruzan and Shiavo executed Health Care Proxies or similarly written declarations of their wishes, they would have avoided the legal and emotional conflicts which arose and ensured that their wishes were carried out.