A healthcare proxy is a document (legal instrument) with which a patient (primary individual) appoints an agent to legally make healthcare decisions on behalf of the patient, when he or she is incapable of making and executing the healthcare decisions stipulated in the proxy. Once the health care proxy is effective, the primary individual continues making healthcare decisions as long as he or she is legally competent to decide. Moreover, in legal-administrative functions, the healthcare proxy is a legal instrument akin to a "springing" health care power of attorney.
Criteria for being an agent
Some jurisdictions place limitations on the persons who can act as agents. (Some forbid the appointment of treating physicians as the healthcare proxy.) In any event the agent should be someone close to and trusted by the primary individual.
Healthcare proxies are permitted in forty-nine states as well as the District of Columbia. Healthcare forms may differ in structure from state to state and pre-made forms are not compulsory as long as certain guidelines are met. The common guidelines include:
- Name and address of the agent.
- Name and address of an alternate agent.
- Duration of the proxy – not indicating a duration means it is valid unless stated otherwise.
- Special instructions – these can broaden or limit the powers of the agent. If the patient doesn't want to be on feeding tubes no matter what, this can be stated here. If there are certain treatments that the patient does not want to receive like dialysis or blood transfusion, then they must be indicated. However, if the patient wants to give the agent more flexibility with some or no restriction, this must be written.
- Name, date and signature of the primary individual.
- Instructions on tissue or organ donation.
- Two adult witnesses must sign the document stating that they have witnessed this agreement and that both parties appear to be sane. The witnesses must be 18 years or older. The agent and primary individual do not qualify as witnesses.
- Presence of a lawyer - such a person may help in drafting a document tailored to the needs of the primary individual.
- Once signed, copies of the form must be given to health care providers, the agent, spouse, and close friends. A copy should also be carried by the primary individual (in wallet or purse).
Powers and limitations of an agent
The agent is empowered when a qualified physician determines that the primary individual is unable to make decisions regarding healthcare. The agent may be granted the power to remove or sustain feeding tubes from the primary individual if these tubes are the only things that are keeping the primary individual alive. The agent's decision should draw upon knowledge of the patient's desire in this matter. If the primary individual made his or her wishes clear on the proxy form, then they must be followed despite any possible objections from the agent.
An individual may have identified end-of-life decisions in a separate document, such as a living will or advanced health care directive, in which case it is necessary to examine all of the documents to determine if any supersede the agent's authority as granted in the healthcare proxy, based on the language of the interrelated documents and governing state law. An agent will not be legally or financially liable for decisions made on behalf of the primary individual as long as they follow the terms of the healthcare proxy.
In England and Wales, an independent mental health capacity advocate may be appointed under the Mental Capacity Act 2005; the provisions made in the same Act for a lasting power of attorney may also provide a satisfactory basis for providing care via an attorney, who does not require to be professionally qualified. Different arrangements apply elsewhere in the UK.
- Advance healthcare directive
- Doe ex. rel. Tarlow v. District of Columbia
- Do Not Resuscitate (DNR)
- Estate planning
- Living will
- Patient refusal of nutrition and hydration
- Power of attorney
- Ulysses pact
- Uniform Rights of the Terminally Ill Act
- "Health Care Proxy - New York State Department of Health" (PDF). New York State Department of Health. Archived from the original (PDF) on 2014-06-11.
- Rai, Arti (September 1999). "The Physician as a Healthcare Proxy". The Hastings Center Report. Hastings Center. Retrieved 2007-10-14.
- Health Care Powers of Attorney: Interactive Map, LawServer. Retrieved on August 19, 2014.
- Larson, Aaron. "How a Power of Attorney Works". ExpertLaw.com. ExpertLaw. Retrieved 8 May 2017.
- Majette, Shawn. "Avoid Disagreements Between Your Power of Attorney Holder and Health Care Proxy". Thompson McMullen, PC. Retrieved 8 May 2017.
- "Myths and Facts About Health Care Advance Directives" (PDF). ABA Commission on Law and Aging. American Bar Association. Retrieved 8 May 2017.
- "Health Care Powers of Attorney" (PDF). American Bar Association.[dead link]
- "Massachusetts Law about Health Care Proxies and Living Wills". Massachusetts Court System. Archived from the original on 2014-10-01.
- Pope, Thaddeus Mason (February 12, 2010). "Surrogate Selection: An Increasingly Viable, But Limited, Solution to Intractable Futility Disputes (Widener Law School Legal Studies Research Paper No. 10-09)". St. Louis University Journal of Health Law and Policy. p. 183. SSRN .