Advance Directives: Healthcare Proxy Selection and Responsibilities

The National Healthcare Decision Day campaign and others encouraging us, including our senior loved ones, to make our decisions known has resulted in many of us executing these documents.

It is estimated there has been an increase of 25% in completion rates for advance directives.

We’re encouraged by that progress!

The more we learn about advance directives and become comfortable talking about them, the more likely it is that we will complete them.

It is important for us to put in writing what we envision to be our end of life and who we want to express our end of life wishes and advocate for us if we are unable to do so.

Our healthcare proxy is an important person in this process.

A Pew Research Study found that only 29% of the population has completed advance directives, sometimes called DNRs, but 70% of older adults have done so. One study found that durable powers of attorney for healthcare were more often completed than living wills.

When we put our decisions or wishes into documents, we are expecting that our wishes will be carried out accordingly.

What happens if that is not the case because there was some kink in the works or a loophole that goes unfilled?

Who Should Be Your HealthCare Proxy?

Your senior loved one’s healthcare proxy or healthcare power of attorney is the person who will advocate for him when he is medically unable to advocate for himself.

When deciding on the best person to be your senior’s healthcare proxy, it is important to consider someone who is willing and able to direct the healthcare team to ensure that their directives are indeed carried out as they wish.

The person could be someone in your senior’s immediate family such as a spouse or child. In the absence of that person, you can empower anyone with this responsibility.

This person will speak for your senior when she cannot, therefore should be someone the senior trusts who knows their mindset about how care should be provided either in an emergency situation or at the end of life.

Advance Directives Legal Documents

When you or your senior create advance directives, including naming a healthcare proxy, it is important to fill out the appropriate document. Each state has a different form and requirements for these legal documents.

You and your senior can complete the forms together or seek help from an elder law attorney specializing in these forms in your state.

Your senior must be considered of sound mind when creating these directives. That is why we encourage them to complete legal documents while they are still clearly legally able to state their wishes and designate a power of attorney for their healthcare decisions.

Be aware that if your senior has not completed advance directives and therefore no one is legally able to advocate for their wishes, the state may step in and make decisions on their behalf that are not consistent with what they would want done.

The right to make decisions for your senior if no one was designated starts with spouse, child older than 18, parent, and sibling older than 18 according to the state’s default surrogate consent statutes.

Designated Next of Kin

If your senior loved one has not designated someone able to carry out their wishes as a healthcare proxy, only immediate family will be able to make decisions for them under the law in most states.

If your senior recognizes someone as the next of kin who is not an immediate family member and has not named them in a living will or other advance directive, that person likely won’t be able to legally direct care consistent with those wishes.

A new study found that one out of ten veterans surveyed picked someone other than family to be their next of kin.

The concern over this new trend is that it could delay medical treatment, leading to poor outcomes for some seniors.

If there is confusion about who can legally make the crucial decisions needed, it could easily delay care. Also, in the absence of a DNR order or other advance directives, a legal next of kin could be asked to make decisions for a person about whom they know little or with whom they have not even interacted for some time.

They may not be involved in or knowledgeable about which decisions the senior would desire.

Who were unrelated next of kin chosen to be healthcare powers of attorney? Many of those surveyed picked a close friend, an unmarried partner, an ex-spouse or a distant relative.

It seems to be a byproduct of a more mobile family dynamic, where we aren’t living in close proximity to our immediate family members.

This raises a question whether the statutes should be modified to take into consideration a more diverse ‘family’ situation. Before that happens, however, we all should be creating our own advance directives and naming the person we feel is the best fit so that a surrogate is not needed. This will reduce confusion about who should make decisions in an emergency and insure that only the person who knows your desires best to make decisions for you.

Decisions a Healthcare Proxy May Be Asked to Make

It might be of interest to those of us who may need to select a healthcare proxy to understand what they might be asked to do so that we can make an informed choice about who to pick.

In the event of a medical emergency, when your senior is unable to express his or her own wishes or decide for himself or herself what should occur, the designated healthcare power of attorney will decide some of the following medical or health related questions:

  • What treatment you should or should not receive including artificial nutrition or chemotherapy
  • Whether life support or heroic measures should be taken or stopped
  • When to give or not give pain medications
  • To which facility you will be transferred
  • Whether or not surgery or other procedures will be performed
  • Should you be resuscitated?
  • Authorize care by other physicians
  • Apply for Medicare or Medicaid or other insurance benefits on your behalf
  • Right to pursue legal action on your behalf regarding health decisions
  • Approve release of medical records
  • Inform family members of condition

That’s a lot of responsibility to place on a person, which is important to know when one’s proxy is being determined.

A healthcare power of attorney cannot make decisions about issues that are not health related.

A proxy should be aware of your senior’s wishes and medical intent so that they can act with full understanding about your wishes and the potential outcomes of the treatments recommended by the healthcare team. Should they be life sustaining at all costs or within reason based on quality of life concerns?

The healthcare proxy needs to have an honest, open discussion with your senior about these matters so that they can make the best decision when the time comes.

Review Advance Directives Periodically

Just because your senior is completing advance directives now doesn’t mean they can’t be changed later. In fact, it is a good idea to review advance directives from time to time to be sure they are still appropriate as written or if they should be updated due to different circumstances, such as divorce or death — or a change in desired wishes.

Perhaps your senior’s stated proxy is now unable to act on her behalf. Maybe the person chosen as the proxy has decided they no longer wish to be the proxy due to health issues, location or time considerations.

Keeping these documents up to date will be important when an emergency requires their use.

Whether your senior has made an advance directive or not, as long as she is able to speak for herself, she will be the one asked to make decisions.

A healthcare power of attorney will only be asked to step in for you when you are unable or incompetent to make your own healthcare decisions.

It is important to make these documents according to the laws in your senior’s state, pick the most worthy person, educate them about medical wishes, and let everyone know what you have decided.

Keeping the advance directives accessible and all the family informed will make it much easier for everyone involved, including the doctor and emergency personnel, so your senior’s wishes will be followed and they will receive the most appropriate medical care, consistent with their wishes.