Selecting Your Health Care Agent
Deciding who you will name as your health care agent is one of the more difficult and important decisions you can make when planning for the future. Depending on the state, your health care agent may also be called a surrogate, attorney-in-fact or proxy.
Your health care agent receives a durable power of attorney for health care from you, which gives your agent the power to make medical decisions for you if you are incapacitated or otherwise unable to make medical decisions for yourself. Depending on the state, the durable power of attorney may be referred to as a "designation of health care surrogate" or "appointment of health care proxy", or something similar. Your agent will not be able to override any health care preferences you set out in a living will, but will have complete authority to make any other medical decisions.
Factors to Consider When Selecting Your Health Care Agent
Your primary concern when selecting a health care agent should be trust. This person may be put in difficult circumstances, so you need to be able to trust that this person will make healthcare decisions that you would make; not decisions they would make for themselves or decisions other family members may want. In addition to trust, here are some of the most basic factors to keep in mind when selecting your agent:
- Assertiveness: To ensure that your medical decisions will be made and enforced, it is critical that whoever you chose will be assertive. This person should be comfortable with the idea of disagreeing with your family, friends and doctor, as well as being capable of taking the matter to court if need be.
- Family Dynamics: It is unavoidable to avoid potential issues regarding your family when important medical decisions have to be made. Families that may otherwise be harmonious may have sharply different ideas about end of life and quality of life issues. In addition, who you choose may cause hurt feelings amongst other family members. This should never cause you to name one person over another, but you should spend time with the people most likely to take offense in order to explain your choice. Using some of these factors to explain it (especially proximity, longevity and who you name as your financial agent) can reduce the chance of misunderstanding and family drama.
- Proximity: While it is not necessary to have your health care agent live nearby, realize that if they are needed, they may need to spend weeks if not months at your location making decisions. This can be a perfectly valid reason to skip some obvious candidates and a great reason to explain to people why you chose one over another.
- Longevity: It may be worth considering the expected longevity of your agent. It may make more sense to choose your spouse than your parents, or even your eldest child (if they are fully grown) over your spouse who has suffered a stroke.
- Financial Agent: Finally, realize that if you select one person as your financial agent and choose someone else as your health care agent, this could end up conflicting. If you completely trust both parties, then this may not be a real problem. However, if your financial agent strongly disagrees with decisions your health care agent is making, he or she may delay in paying bills which can greatly affect the kind of care you actually receive.
Don't Name a Doctor or Hospital as Your Health Care Agent
It may make sense to have your doctor or a trusted hospital employee be your health care agent, especially if he or she has been treating you most of your life. However, most states have laws that prevent this, as it may put your doctor or the hospital employee in a conflict of interest and cause other problems.
Note that this may apply even to your preferred agent (e.g., spouse), if he or she is a doctor or hospital employee. So check your state's laws if the person you wish to name as your health care agent is a doctor or works for a hospital.
Naming Several Health Care Agents
You should generally never name more than one health care agent. It may seem like the diplomatic solution to any family issues, but it is more likely to cause problems than solve them. It often results in family in-fighting, and can strain or break relationships between people you care deeply about. It also can delay or cast doubt on decisions if one agent is unavailable and neither doctors nor courts want to follow through with questionable decisions. In a worst case scenario, one agent could take a matter to court which would cause considerable delay and acrimony between the parties.
Naming Alternate Health Care Agents
Rather than name multiple agents, it makes more sense to name alternate agents. If your named agent passes away or is otherwise unable to perform his or her required duties, then the responsibility would fall to your alternate agent. This can also be a diplomatic way to deal with family issues, as people named as alternates would still feel trusted and included. You should, however, take the task of choosing an alternate just as seriously as naming the primary candidate. Never select someone you wouldn't trust and really want making decisions for you simply to avoid family issues.
Don't Name a Health Care Agent
Rather than choose a health care agent you are not comfortable with, you should consider simply not naming one. If you don't name an agent, your treatment will largely be guided by your living will (something an agent could never override anyways). If you do not name an agent, make sure you really spend time on your living will to cover as many scenarios as possible, and contact your doctor and hospital to discuss your medical care wishes and how to best see them carried out.
Next Steps: Get a Free Initial Legal Evaluation
As you begin down the road to estate planning, one of the most crucial decisions you will make is whether or not to name a health care agent. While this type of decision is highly personal, it is important to talk about the legal implications with a skilled estate planning attorney in your area. Start today with a free initial legal evaluation.