One of the most difficult aspects of aging is the need for wise decision making about health care. Medical care is a necessary part of life for many seniors, and thanks to medical science there are many different choices that can be made concerning treatment. The need for medical care may be ongoing. It may also be for a limited time, such as a hospital stay, and may make it difficult for the patient to handle medical or financial affairs. This may also pose problems for a loved one who is asked to make medical decisions on behalf of the patient if the patient cannot communicate his or her wishes. In some cases family members may disagree as to how financial or treatment decisions for the patient should be made. In the absence of input from a patient, decisions may be made that are contrary to what he or she would have wished. All of this can place a burden on family members who must deal with difficult decisions at a time of stress.
Consider this: Mr. Jones has been diagnosed with Alzheimer’s disease and is no longer able to make medical decisions. He does not have a health care proxy. When he is diagnosed with cancer, his family must decide whether he would want chemotherapy treatment, radiation, or simply care that would make him comfortable. They have no indication as to what he would prefer. The children are torn between different treatment choices. They have never discussed with Mr. Jones what treatment options he would prefer in the event of incapacity. Each disagrees with the other’s choices.
As difficult as these situations are, there are ways to make them easier. One key to responsible medical decision making is a health-care proxy—a document that gives an individual (known as the agent) the ability to make medical decisions on behalf of another. The proxy is effective in the event an individual (known as the principal) is unable to make those decisions for himself or herself. In order for the proxy to be effective, a doctor must verify that the principal lacks capacity to make medical decisions or is unable to communicate his or her wishes.
Powers of the agent
It is important to know that the power of the agent is only effective when the principal is unable to make medical care decisions himself or herself. The agent should make best efforts to make decisions that reflect the principal’s wishes. If this is not possible, decisions of an agent should be made in the best interests of the principal. In the example above, if Mr. Jones did not have a health care proxy, his family would have no guidance as to his wishes, leaving them to anguish over the best course of treatment. In some cases the lack of a health-care proxy can result in a guardianship being sought.
Health-care proxies can be as broad or as specific as an individual determines appropriate. The proxy may grant powers only for a specific treatment, such as a hospital procedure, or grant powers as broad as “any and all.” If the principal regains consciousness and a doctor determines that he or she is competent to make decisions, then the proxy ceases to be effective.
It is important to note that health-care proxies do not empower an individual to make financial decisions. If financial authority is necessary, a separate power of attorney should be drafted. Unlike health-care proxies—a power of attorney can be effective regardless of the individual’s competence as long as he or she is competent when granting the authority. It is always helpful to seek the counsel of an elder-law attorney to answer questions and, when needed, to draft these documents.
In order to ensure that the health-care proxy is effective when needed, it is a good idea for the principal to give copies of the proxy to the agent and to a treating physician and other parties who may be involved. An elder-law attorney can assist with the drafting of a health-care proxy when needed and can help guide the family to resolve issues. A talk with family members about the principal’s wishes and the existence of a proxy may save heartache in the future.
Deb Thomson is an elder law attorney and co-chairwoman of the Harvard Council on Aging.
