Health Care Proxy: Who Makes Medical Decisions If You Can't?

Being able to make health care decisions for ourselves is so important to us. However, what happens if you become incapable of making choices or unable to voice your opinion? If you don’t have a health care proxy or guardian in place, state law chooses who can make those decisions.

What Exactly Is a Health Care Proxy?

As part of your estate plan, you can appoint an individual as your health care proxy. (Note that you may hear attorneys refer to this role with different terms, depending on your state. Some call it a medical power of attorney. Others use the terms health care representative or health care power of attorney.)

The person you name to take this role on should be someone you trust without reservation. You will be authorizing them to make medical decisions on your behalf if you become unable to do so. Ideally, your agent will be aware of your values and wishes regarding life-saving treatments or end-of-life care. In addition, you want to select someone who will honor those wishes, even when they may not personally agree with them.

In some states, you may be able to name an alternate health care proxy.

What Happens Without a Medical Power of Attorney?

In an emergency, health care providers can take measures to keep us alive. However, once the emergency has passed, they will look for someone to make the next most crucial medical decisions.

If you are seriously ill or injured, you may be unable to express your decisions (either temporarily or permanently). In that case, your doctors will consult the agent you've so carefully appointed. But if you have no one like this in place, then most state laws dictate who has the right to act on your behalf.

The list of surrogates who can make medical decisions for you usually goes in order of priority. For example, it may start with your spouse and adult children. Parents, siblings, grandchildren, and close friends may also be surrogates.

Yet it's quite possible these are not the people you want making decisions for you. Plus, not having your wishes spelled out can cause dissension among your family and confusion for medical professionals.

The Need for Guardianship

A few states do not have laws dictating who can act in a person’s place if they become unable to express their wishes. In those states, your family may have no choice but to go to court to get a guardian appointed. Even in states with surrogate laws, family members on the surrogate list may disagree over your medical treatment. They could even end up in court anyway, asking the court to appoint a guardian for you.

Guardianship is a type of legal relationship. A competent adult, the guardian, attains the power to make decisions for another individual, the ward. The ward is someone who can no longer take care of their own affairs, often because of serious illness or injury.

Consult With an Estate Planning Attorney

The guardian can obtain the authority to make legal, financial, and health care decisions for the ward. The process to appoint a guardian, however, is expensive, time-consuming, and quite restrictive. That's why guardianship almost always serves as a last resort.

To avoid the state choosing who acts for you, have a health care proxy (or health care power of attorney) in place. Work with a qualified attorney to help you choose the right individual and draw up the necessary documents.

By executing a health care proxy, you are authorizing your agent to carry out your wishes. Doctors and other medical professionals will defer to the person named in the document to act on your behalf.

Find an estate planning attorney near you today. Keep in mind that a local attorney will be familiar with the laws governing your state. If you have a health care proxy in place, consider reviewing and updating it as part of your estate plan every few years. After all, your health can change, as can your willingness to endure certain medical treatments over the course of your lifetime.

To get a better understanding of these types of legal arrangements, check out the following informative articles:

• What Is the Difference Between a Living Will and a Do-Not-Resuscitate Order?
• Avoid Disputes Between Your Power of Attorney Holder and Health Care Proxy
• Will My Advance Directive Work in Another State?
• Q&A: Can an Agent Under a Financial Power of Attorney Revoke a Health Care Power of Attorney?