Some Tips on Making Health Care Decisions for Someone Else

by Bernard Krooks

While I think we all understand the importance of getting our affairs in order and making sure we have a sound estate plan in place, sometimes I wonder whether we all truly appreciate what it means to be named as the health care agent for someone else.

Under New York law, all individuals with legal capacity over the age 18 have the ability to make their own health care decisions. However, if you do not have legal capacity to make your own decisions, due to an accident or illness, or for some other reason, then your duly appointed health care agent has the authority to make health care decisions on your behalf. When you name someone as your health care agent, you literally entrust them with life-and-death decisions in the event you cannot make these decisions for yourself. When you are the agent for someone else, the job can sometimes seem overwhelming.

Sometimes health care decisions must be made by someone who may not even be aware of what your wishes are. In our experience, few individuals have had specific discussions with their agents about their health care wishes, and those who have not gotten around to signing advance directives are even less likely to have given any direction. Of course, without a health care proxy your family may have to go to court in a guardianship proceeding to make health care decisions for you. This is an expensive and time-consuming process that can be avoided by signing advance directives.

Although thousands upon thousands of people make health care decisions for someone else every year, there is little help or direction available for the agent. Lawyers may be familiar with end-of-life care and decisions, but they seldom get involved — and may be an expensive way to facilitate decisions even if they are available.

Nevertheless, here are some suggestions for those making health care decisions for someone else:

• Talk to the person who has named you as agent about his or her wishes. Sooner is better than later, but even a person who has dementia, who is seriously ill or is an incapacitated patient might be able to give some direction. The more you know about the person’s wishes and desires, the better likelihood that you will be able to carry them out.
• If you know you have been named as health care agent, ask for a copy of the health care proxy and/or living will. The documents might include provisions that surprise you, or that you need clarified. The time to seek clarity is before you are called on to act.
• When you have to begin using the health care proxy, make sure you get all the information you need. Talk to doctors, nurses and caretakers. Explain why you need to have your questions answered, and insist that you get them answered.
• If you do not fully understand the medical issues involved in a given procedure or test, tell the providers you need more information. Do not hesitate to get a second opinion when you are uncertain what you should be doing.
• Remember that you are not applying your own standards to the decision, but those of the person for whom you are acting. This can be the most difficult part of handling a health care proxy. You are expected to substitute the patient’s judgment for your own, not the other way around. This is not about you; it is about making sure that the wishes of the person who appointed you are carried out.

While being appointed as someone’s health care agent carries with it a tremendous amount of responsibility, you can take comfort in knowing that you may be instrumental in ensuring that their wishes are honored.