Crafted by the legal team at James H. Wilson
Designating a durable power of attorney for health care is a significant step in planning for your future medical needs. The crux of this decision lies in appointing a health care agent—also known as health care proxy, surrogate, or attorney-in-fact, depending on local terminology.
At the law offices of James H. Wilson, we often observe clients naming a spouse, partner, a family member, or a dear friend to this role. What’s paramount is the absolute trust you place in this individual, paired with the ease of discussing your medical care desires with them. Your selected agent isn’t required to agree with all your preferences, but they must honor and advocate for your treatment choices without fail.
A durable power of attorney for health care legally empowers another person to make informed medical decisions on your behalf should you be incapacitated. Different states may title this document as an Appointment of Health Care Proxy, Designation of Health Care Surrogate, or something similar—the function, however, remains consistent.
Consider if the nominee is assertive. They must be prepared to champion your wishes against a resistant medical establishment or family members with differing beliefs. The ability to stand ground is critical, especially if there’s potential conflict around enforcing your desires.
Geographic proximity is another consideration. It’s not a necessity for your agent to reside in the same locale, but it can be advantageous during prolonged illnesses. They may need to be present for extended periods to ensure your health care preferences are respected.
Also, evaluate if the individual will act as your financial agent. Consistency in appointing the same person for both health care and financial decisions is often beneficial. Should you appoint different agents, make sure they have a harmonious relationship, as dissonance could impede your financial agent from processing medical expenses or insurance claims—matters crucial for your care.
Avoid selecting a health care provider as your agent. Legal and ethical considerations typically preclude health care workers involved in your treatment from assuming this role. Nonetheless, certain states grant exceptions if the person is a relative or co-worker within the same health care institution.
State laws may impose limitations on who can serve as a health care agent based on perceived conflicts of interest or biases. At James H. Wilson, we can guide you through these regulations to ensure your choice is legally sound.
Legally you might be able to name multiple agents, but best practice suggests naming just one to act on your behalf regarding health care decisions. Having several agents can lead to disputes and inefficiency when urgent care decisions are necessary, potentially resulting in legal battles.
To ease any potential hurt feelings among loved ones, we recommend transparent communication about the reasoning behind your selection. If multiple people are willing and capable, you might consider having them determine amongst themselves who will serve as your agent, with you ratifying their selection.
We advise the nomination of one or more alternates in case your primary agent is unavailable or steps down. Exercising the same level of consideration in selecting alternates ensures that your agent’s absence won’t nullify the care you envisage.
In circumstances where you can’t entrust this responsibility to anyone, it’s better to forego naming an agent altogether. Instead, we counsel completing a living will, clearly articulating your firm health care preferences. Health care professionals are mandated to honor these documented wishes or to transfer your care to another provider if necessary.
It’s crucial to discuss your health care intentions with your medical care providers, even in the absence of an agent, to ensure your treatment aligns with your wishes.
For consultation or further information on selecting your health care agent, contact James H. Wilson at 804.740.6464. Our legal team is committed to aiding you in making informed decisions for your future health care.