Estate Planning
Health Care Proxy

Who can speak for the patient who cannot speak for himself?

When the doctor sets out alternative plans for the treatment of Aunt Jane but Aunt Jane is not able to comprehend the plans or communicate her wishes, who decides between the alternatives? Who can speak for Aunt Jane when she cannot speak for herself? Spouse? Children? Brothers and sisters?

Prior to Health Care Proxy

A competent adult can decide to accept, or to reject, health care treatment. The best source of information concerning the decision comes, of course, directly from the patient. If the patient is not able to communicate, a court will require "clear and convincing" evidence of the patient's wishes. The "clear and convincing" standard has often been held to require testimony of the patient's wishes with respect to exactly the same circumstances. This is rarely the case.

The Health Care Proxy

With a Health Care Proxy a person can appoint an individual over the age of 18 as an agent to make a health care decision when the appointer lacks capacity. Before the agent can act, however, several things must happen. First, the attending physician must note on the patient's chart that the patient lacks capacity to make a health care decision. Second, the agent must consult with the attending physician. Then the agent authorized to act and may make a decision "in accordiance with the known wishes of the ... patient." If the patient's wishes are not known, however, the agent may act - but in the "best interests" of the patient.

Health Care Proxy and Living Will Compared

The so-called Living Will is a document that attempts to describe the kinds of health care a person wishes to receive when lacking capacity to make decisions in the future. One difficulty with the living will is that, without foreknowledge of the precise situation in which the living will may be relied upon, it may be difficult to meet the "clear and convincing" evidentiary rule. Another is that the Living Will by itself does not legally authorize anyone to carry out its mandate.

The Health Care Proxy avoids both these difficulties. First, the health care agent is legally authorized by statute to make a health care decision for a person who lacks capcity to do so under the conditions specified in the statute. Second, although the health care agent is supposed to act in accordance with the "known wishes" of the patient, the law also "presumes" that the agent knows those wishes.

Should the Health Care Proxy and Living Will be Combined?

Should the Health Care Proxy simply appoint an agent, or should it also contain directions as to kinds of health care and the circumstances under which they should be administered? The answer to this question is that sometimes, "less is more."

An advantage of the Health Care Proxy and the legal authority of the agent is that third-parties - e.g., physicians or family members - do not have much standing to contest the decision of the health care agent. When written directions exist against which the actions of the agent can be compared, however, this changes and those who would second-guess the decision of the health care agent may gain some traction.

Copyright (c) 2008, George T. Wolf. All rights reserved.