None of us can predict what the circumstances will be at the end of our life. However, we should be prepared for any possibility if we want our wishes honored if the worst should happen.
Most of us have an idea of how we want treatment handled if we are suddenly faced with a life-threatening illness or injury. Unfortunately, we may not be in a position to speak for ourselves if we’re seriously hurt, in a coma, or otherwise incapacitated. The hard reality is that it’s all too common for terminally ill or injured people to also suffer from mental incapacitation. If this happens, someone else is going to decide for the injured person, and ideally, that someone should be a healthcare proxy–also referred to as a “health surrogate,” or a person’s “health care power of attorney.”
A healthcare proxy is a person designated with legal authority to make medical decisions on behalf of another (the declarant) when that person no longer has the mental faculties to do so on their own. The declarant should have communicated their wishes to the proxy prior to the time of decision-making. When a proxy becomes the decision-maker is determined by the declarant’s doctor. The selection of a healthcare proxy is an important part of the overall estate planning process.
When There Is No Healthcare Proxy
The advantages of having a healthcare proxy can be clearly illustrated by looking at what happens when no such designation has been made.
When there is no healthcare proxy and the doctor in charge has determined a patient is mentally incapacitated, then medical decisions–per the state of Texas–go into the hands of the spouse, the adult children or a close relative.
If a spouse is alive and still mentally fit, they are very likely to know how the sick person would have wanted treatment to be handled. But it’s very possible that spouses and children–even ones with good relationships--have different levels of willingness to “let someone go”.
What if there’s no spouse in the picture? It’s not uncommon for parents and children–including ones with good relationships–to have very different ideas over life-and-death bioethical issues.
Let’s consider this example–an octogenarian woman with several adult children has had a stroke. After a recent surgery, she was heard to say, “I’m never doing this again”. Yet, her personal beliefs required that she continued to be given IV treatment. Now, after the stroke, she is incapacitated. Her children are conflicted about whether they agree with their mother’s beliefs and are trying to reconcile that with a recent verbal statement their mom made about being done with medical procedures.
The lack of a healthcare proxy can make this situation very chaotic. The arguments that may ensue could result in decisions that might not be what the octogenerian woman would have wanted. And the arguments among the siblings can damage their relationships with each other for years to come.
Picking a healthcare proxy can help avoid these types of issues by designating one decision maker.
Who Do I Pick as My Healthcare Proxy?
The state of Texas offers declarants a great deal of latitude in their proxy selections. It can be someone from your family, but it doesn’t have to be. People will often choose close friends, with whom they share common values on important issues. The one absolute requirement is that the proxy chosen must be at least 18 years old.
It is recommended that declarants choose more than one person for their healthcare proxy. This is not to set up a “co-decision-making” situation. The proxies should be listed in a line of succession. People move out of state, and they pass away. Setting up a line of succession is designed to make sure alternatives are available.
Once you pick your proxy, you must sign a written document to that effect. Your signature must take place in the presence of two witnesses who attest to your mental soundness. At least one of the witnesses must be someone you have not chosen to be in your proxy line of succession.
The standard healthcare proxy form in the state of Texas does not require any of your chosen proxies to sign, even if they can be a witness. Of course, it’s still an extremely good idea to have talked with them beforehand and secured at least their verbal agreement to this serious responsibility.
Advance Health Directives
Even after you’ve chosen your proxy and set up the line of succession, there are still end-of-life medical situations that a reasonable person might foresee. The state of Texas allows for what is called an advance health directive. This directive lays out your specific wishes for medical treatment.
A DNR order (Do Not Resuscitate) can be given if you prefer not to be revived after a heart attack or some other cardiac event. You might also sign a POLST form (Physician-Ordered Life-Saving Treatment) if you do want all efforts to be made to keep you alive.
Even if you have a healthcare proxy and that proxy understands your wishes, advance directives can still be very helpful. End-of-life situations are moments of extreme stress for the family members. When you articulate as many of your wishes as is realistically possible on paper in a legally binding document, you reduce the burden on your loved ones and make it less likely that they will be arguing over your treatment options.
Healthcare Proxies as Part of Holistic Estate Planning
The decision about your healthcare proxy is just one part of a good estate plan, and the ability of that proxy to execute their responsibility might be dependent on how the rest of the estate plan is structured.
In an estate plan, you also designate a financial power of attorney to handle your money in the event of mental incapacitation. The best solution for you could be to have different people in these roles. Let’s say you want your medical decisions handled by a close friend, but one of your children is a financial whiz. You can allow each of your loved ones to play to their strengths by granting them separate roles.
Now let’s say you have a stroke. You are unable to communicate, and your mental powers are badly damaged, but there’s still a chance of recovery. Your healthcare proxy knows that your wishes would be to stay and fight, so they find you the best possible nursing care facility for your recovery.
Here’s the problem–the power to make decisions is minimal without the money to make them happen. Your financial power of attorney might believe there is no real hope of recovery, and, as your child, they find it painful to see you like this and can’t imagine you would want to live this way. They could refuse to authorize the money needed for the nursing care facility.
This situation is ugly enough and it could get worse. Let’s say your child accuses your good friend of trying to keep you alive for no real purpose. Your friend thinks your child just wants to preserve their inheritance money. None of it is true on either side, but emotions are running high and these types of decisions are hard. This could have been avoided by integrating a health care power of attorney into a good overall estate plan where the proxies are either the same people or they have specific instructions about proper care.
Thinking about the end of our life is hard under the best of circumstances. It’s even harder when we think about how difficult the consequences might be if we aren’t there to make the necessary decisions.
That’s why we’re here.
Hembree Bell Law Firm, PLLC, can bring compassion to the estate planning process. We combine that with real legal savvy, the kind that allows us to think through the most difficult situations and help you develop a plan in the here and now. Call us today at (512) 768-9737 or reach out online, so we can learn more about your situation and help with your estate planning needs.