Q. My sister, Tracy, told me recently that she is planning to get her incapacity planning documents in order and she asked me to be her health care agent. We aren’t super close but we are both the only family the other one has. Still, before I agree to taking on the role, I want to know more about what it entails since she also has a very close friend in mind that she could ask. Can you help me understand more about what duties a health care agent performs? Thanks so much for your help!
A. A health care agent (also called a health care proxy, a medical agent, or a health care representative) is a person who is appointed to make health care decisions on behalf of someone else. Your role as a health care agent starts when your loved one is incapacitated and no longer able to make medical decisions on their own, and/or during temporary emergency situations where your loved one is unable to make their own medical decisions, such as providing informed consent for certain invasive medical procedures. Their doctor will decide when this occurs and will let a health care agent know when they need to begin serving in that capacity for their loved one.
Your sister is wise to get her incapacity planning documents in order and select an agent to carry out her wishes. By appointing a health care agent, your sister:
- will have someone she trusts to decide how her health care wishes will be applied if ever she is unable to make health care decisions for herself, whether that’s for a short time during an emergency medical situation, or on a permanent basis once she has completely lost the capacity to make medical decisions for herself;
- will ensure that her health care agent has access to her advance medical directive with the understanding that her agent will follow her wishes to the greatest extent possible as spelled out in her advance medical directive; and
- will have the ability to give the person she selects as her medical agent as little or as much authority as she wants them to have.
Understanding the Role of a Health Care Agent
Being a health care agent is a big commitment. As a health care agent, you may be tasked with making all health care decisions or only certain ones. You will generally be given very specific instructions to follow in some medical situations, such as end-of-life care; but you will often also be given wide discretion to make decisions for your loved one when it comes to emergency medical decisions and other types of unpredictable situations related to health care. These are some of the decisions you may need to make, and some of the assistance you may need to provide, based on your loved one’s wishes:
- Choices about medical care, including medical treatment, tests, or surgery;
- Where your loved one will receive medical treatment and rehabilitation, such as a hospital, nursing home, assisted living facility, or at home.
- Where your loved one will receive long-term care services, such as at a nursing home, in an assisted living facility, or at home.
- If your loved one needs long-term care, is unable to communicate her own wishes, and has completed the Farr Law Firm‘s proprietary Long-term Care Directive®, you will be called on to assist with making sure that your loved one’s long-term care decisions are followed to the greatest extent possible –– decisions such as dietary preferences, entertainment preferences, grooming and hygiene preferences, and sleeping comfort preferences.
- If and when your loved one will receive hospice and/or palliative care, and whether that care will be provided at home, or in a long-term care facility such as a nursing home, assisted living facility, or possibly a dedicated hospice facility;
- Choices about life support and end-of-life care in the event of a terminal condition;
- carrying out your loved one’s after-death decisions, such as organ donation, burial or cremation, setting up funeral arrangements, etc.
As a health care agent, you will talk to your loved one’s doctor, perhaps review medical records, and perhaps make decisions about treatment, tests, and medical interventions, following your loved one’s known wishes to the greatest extent possible. If your loved one has clearly expressed particular wishes, or given specific instructions to provide or withhold certain treatments, you should always follow those wishes or instructions.
As a health care agent, you should also have full access under HIPAA to your loved one’s medical information and will only be involved in medical decisions. In your capacity as health care agent, you will not have legal authority to make decisions about the person’s finances or anything else.
Being a Health Care Agent is About What Your Loved One Wants for Themselves
Sometimes, a loved one’s wishes may go against what you would have wanted for them. So, when a health care agent has to make a decision, he or she should ask themselves, “if they were able to speak right now, what would my loved one say?” It’s also important for the agent to talk about wishes and choices with their loved one before the situation arises when they can no longer speak for themselves, and to review their loved one’s advance medical directive such as the Farr Law Firm’s proprietary 4 Needs Advance Medical Directive®. Having such conversations while you can will help simplify health care decisions you make for a loved one if and when the time comes.
Also keep in mind that there may be a time when following a loved one’s wishes isn’t possible. There may be physical, medical, financial, or safety reasons you can’t do exactly what your loved one would have wanted. For example, they may say they want to die in their home, but it may not be possible to move them from their hospital bed or nursing home bed when the time comes. It isn’t easy to go against your loved one’s wishes, especially when they can’t speak up for themselves. When this happens, the health care agent should do the best that they can to act in the best interest of their loved one. For instance, if someone can’t die at home, the agent can bring things from their home, such as blankets, photos, or a pet, to make the environment close to what their loved one would have wanted.
For specific questions and conversation topics to address with a loved one regarding his or her health care wishes, please see today’s Critter Corner article.
How to Say “No”
What if you’re not comfortable taking on the role of health care agent? If you feel like you won’t be up to the task when the time comes, it’s of course okay to say “no” — that’s why your loved one is asking you in the first place, as not everyone is comfortable performing this role. You may not agree with your loved one’s wishes, or you may not be comfortable with making decisions involving carrying out someone’s end of life wishes. No matter what your reasoning is, it’s okay to be honest. You can say, “Thank you for asking me. I’m honored, but I don’t think I can do a good job being your health care agent.” This way, your loved one can think about who else they would like to have as their health care agent.
If you are unsure about being named as health care agent, and perhaps afraid that you might not be able to take on the role in the future, if and when that time comes, you should ask your loved one to name one or more alternate agents to you, so that if you are unable or unwilling to act in that role when the time comes, the alternate will be called on instead. Your loved one my name is many alternate health care agents as they can come up with.
Understanding Incapacity Planning
Incapacity Planning, including an Advance Medical Directive, a General Financial Power of Attorney, and a HIPAA Authorization, is extremely important for everyone over the age of 18, as it communicates a patients’ choices when they can no longer speak for themselves, which can of course happen at any age.
If you are the person who is going to be signing your incapacity planning documents, please understand that your advance medical directive keeps you in charge when it comes to decisions about your medical care. So long as the doctors deem you competent to make your own medical decisions, the doctors are not going to look to anyone else to make those decisions for you. And even when you’re no longer capable of making those decisions, your advance medical directive puts you in control to the greatest extent possible, because your agent must follow your wishes to the greatest extent possible. Incapacity planning also shows compassion for family and friends. When loved ones are left guessing, too often the result is guilt, uncertainty, and arguments. By making your wishes known in advance, you are helping your chosen agent(s) and other family members and loved ones feel more comfortable with your chosen course of care. Advance medical directives help improve end-of-life care for hospital and nursing home residents while often decreasing health care costs. Research shows that nursing home providers are missing out on opportunities to reduce unnecessary care and cut health care costs by not having residents’ advance directives on file.
When you do incapacity planning with the Farr Law Firm, your documents are always accessible when needed. At the Farr Law Firm, we offer a service called DocuBank to ensure that that the documents you’ve completed will be there when you need them most, such as when you are hospitalized.
Ready for Incapacity Planning?
As you can see, it is extremely important to develop incapacity planning documents, including an Advance Medical Directive, to make your wishes legally enforceable. If you and your loved ones have not done Incapacity Planning (or Long-Term Care Planning or Estate Planning), or if you have not had your planning documents reviewed in the past several years, now is a good time to plan and get prepared or get your documents updated. Call us any time to make an appointment for an initial consultation:
Fairfax Estate Planning Attorney: 703-691-1888
Fredericksburg Estate Planning Attorney: 540-479-143
Rockville Estate Planning Attorney: 301-519-8041
DC Estate Planning Attorney: 202-587-2797
About Renee Eder
