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Bloody Eyeballs: Who Will Make Health Care Decisions for You if You Can’t?

When I was a young attorney of around 25 (YEARS ago), I remember an older client telling me that she did not want to provide the hospital with a copy of her Living Will (the document that specifies her wish not to be kept on life support if she were terminally ill, with no hope of recovery). She said that she felt that the young doctors dismissed her and she felt like they were saying to themselves something to the effect of: “Well, she is SIXTY-FIVE”. (At the time, I probably thought to my 25 year old self, “and your point is?”) She felt that she had a lot of good years ahead and she worried that someone younger would discount that possibility because he thought she was “old”.

Now that I am 51 and closer to her age when she told me her concerns (65) than I am the age I was when we discussed this (25), I totally understand what she was talking about! It brings to light the importance of having assistance with medical care and decision making from someone who can appreciate your perspective and understands your wishes.

Naming a Health Care Agent on a Health Care Power of Attorney can be difficult. Oftentimes the hardest decision for clients to make is deciding who will make medical decisions for them if they are unable to make health care decisions for themselves. As with financial decision making, it’s rarely advisable to simply pick your oldest child. We generally ask clients to consider two main questions: Who knows your medical wishes? Who will be able to advocate for you (and honor your medical wishes)? Related to those two main points, we often mention the following points to consider:

1. Co-Agents. We generally do not recommend that you name Co-Health Care Agents. If you name Co-Agents, and they are not in complete agreement, the physician and the hospital can be put in a very uncomfortable position. In fact, you might end up in a court proceeding (a guardianship proceeding) to have a judge settle a dispute. Avoiding a court guardianship proceeding is one of the main reasons we recommend clients put in place a Health Care Power of Attorney to begin with! You can certainly include provisions asking that your named agent discuss health care decisions with another person or other people, but the final decision making authority should generally rest with a single individual.

2. Religious/Political Differences. It is important to take into consideration religious and/or political differences when naming an agent. You might feel strongly that life should be preserved at all costs, and all measures should be taken to keep you alive. Or, you might be considering naming a Health Care Agent whose religious views do not allow for blood transfusions. You can see how even these two simple examples could cause significant issues if they weren’t addressed before a named Health Care Agent were called upon to make medical decisions.

3. Age. As in the initial example, it is important to not discount the importance of the agent’s age when you ask an agent to serve for you. If it’s possible for you to find someone close to your age (for example, a close friend or a sibling), that person might understand the nuances of where you are with respect to your age more than someone who is significantly older or younger than you.

4. Guilt. For most parents, the thought of making a decision to terminate life support for a child is unfathomable. It would be difficult, if not impossible, for many parents to make that decision. Even though actuarily more expected, it can also be very difficult for a child to make the same decision for parent. Once the decision is made, even if the agent knows that the decision was consistent with the person’s wishes, the agent can feel tremendous guilt. Oftentimes, the agent is left second-guessing his or her decisions for a significant amount of time afterwards.

5. Location. Clients frequently ask us if it is appropriate to name an agent who lives far away. Do you have to name someone who is local as your agent? This can be a difficult question to answer. If there is an accident, or a sudden medical emergency (like a heart attack), agents who are out of state can often be reached quickly now as most people carry cell phones or answer emails fairly quickly. In those instances, believe it or not, distance is less of an issue. Distance becomes more of an issue when there is a long term, or chronic condition that the agent is dealing with. For example, if you are in a rehabilitation facility for an extended period of time, an agent who lives out of state may not be able to provide the time and attention you need. We often recommend that clients list several agents (in their order of preference), and notify each agent that he or she can decline to serve at any point in time if the time commitment becomes too onerous. Under that structure, you might name as your first agent your friend who lives out of state, but understands your wishes and would advocate for you. If the time commitment becomes too much, your friend might resign in favor of a child of yours who lives close to you, and is better able to handle day to day, extended medical decision making.

6. Time Commitment. As mentioned above, an agent for medical decision making could be facing a wide range of time commitments, depending on the circumstances. It is important to discuss this with your agent and successor agents.

7. Peculiarities. I, myself, do not like to talk about, think of, or deal with eyeballs. I am more than willing to serve as a Health Care Agent for my family and friends, but only after full disclosure that if a person is unable to make his own medical decisions and an eyeball issue pops up, I am checking out and will let the successor agent after me serve as agent. I have another family member who can’t stand to be around vomit. I would never ask her or expect her to sit with me if I were on medication that caused extended nausea or vomiting. While these seem like minor issues, they could become important based on the facts and circumstances at the time and should be discussed.

And now I leave you with a final thought. While I was talking to a very dear friend of mine about medical decision making, we were asking each other if we would do “x” or “y” for each other (both x and y being activities dealing with bodily fluids, eyeballs, etc.). We love each other enough to acknowledge that we would certainly be willing to HIRE someone to do “x” or “y” for each other, but we could not do those things ourselves. And that is a good friend and someone that I’m sure understands my wishes, and will advocate for me (in a way that is comfortable for both of us).

Post by: Vickie R. Wilcox, J.D., LL.M. (Taxation)

Disclaimer: These materials are designed as a general overview and should not be relied upon for legal or tax advice. Please consult a qualified attorney and/or tax advisor for compliance and up-to-date information and advice specific to your circumstances.


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