“The Greatest Wealth is Health”​ -Virgil

Health is something most of us fail to appreciate, especially when we are young.

Health is something we only true value when we lose it.

There is a sense of helplessness that comes with being ill. There are many things in life that are out of our control and, under some circumstances, certain medical situations can be unpredictable, unimaginable and devastating.

But there is something we can all do to preserve our wishes when it comes to health care decisions and even end of life issues.

Advance Directives are written statements that are valid during a person’s life but onlywhen they are incapacitated. There are two Advance Directives you should know about. I will be addressing one of them in this article; the next article in the Series will address the other.

Incapacity, for brevity’s sake, is when a person is unable to make their wishes known because they cannot communicate verbally or otherwise, or is incapable of processing or understanding information due to neuro-cognitive deficits caused by any number of medical conditions.

The document is a Health Care Proxy and it is vital to any person alive. The latter statement is not an exaggeration.  The following hypothetical will, hopefully, drive the point home.

Jane Smith and John Smith are in their forties. They have been married for eight years with no children.

John comes from a large family, while Jane is an only child.

Neither has any major medical issues and are in seemingly good health.

Then one day, Jane and John are driving down a local road when they are in a head on collision with another driver who ran a red-light driving way over the 25 miles per hour speed limit. John is ejected from the car.

Jane was wearing her seat belt, while John was not.

While John survived the accident, he was very seriously injured. He suffered a traumatic brain injury when his head hit the glass, he was ejected from the vehicle and his body hit the pavement.

Unfortunately, he never regained full consciousness. He has not spoken in over a year and will only briefly open his eyes but does not focus on anything or anyone. He cannot feed, toilet or clothe himself. He is confined to his bed. He was placed on a mechanical ventilator to assist with breathing since he was unable to do so on his own. A tracheostomy was also performed.

The neurologists are unsure of what John can hear or understand, but they do not expect a reversal of his condition.

John had, one more than occasion, told Jane that he did not want to be kept alive through artificial means if he were to suffer an accident that left him in bad shape. Jane wanted to honor those wishes.

John’s siblings, however, objected to Jane’s plans. They wanted to keep their brother alive at all costs.

Who did the hospital listen to? Neither side. They kept him alive through artificial means because that is what hospitals are supposed to do. There was no Health Care Proxy (or a Court order) which allowed the medical staff to follow anyone’s directives regarding care and life sustaining measures.

Jane’s status as John’s legal wife carried no weight when it pertained to health care decisions, particularly life sustaining measures.

NOTE: There is a solution to the above scenario—and I will address this later in the Series.

This is a terribly sad hypothetical, but it is a composite of real life situations I have run into repeatedly through my guardianship practice. It is more common than you think and more emotionally devastating than I have painted here.

What would have changed in this scenario if a Health Care Proxy had been in place?

If the Proxy was properly drafted, executed and witnessed, the Principal (in my hypothetical, John) would have named an Agent (his wife, Jane) to make health care decisions. And John’s wishes would have been followed. No extraordinary measures would be taken to prolong his life. He would be given medication to make him comfortable and to lessen and eliminate physical pain.

An Agent must be a person the Principal trusts, who is reliable and responsible and who has displayed a pattern of good decision making. They must be a person who can act decisively under pressure.

If in my hypothetical, Jane is a person who is indecisive, unreliable or buckles easily under pressure then she is not a good candidate to be John’s Agent. It is undeniable that she loves her husband but she may not make the best decisions in a life or death situation. Remember, it is always about the Principal’s best interests and wishes, not about the Agent’s feelings or self-interest.

Here are some important points I wish to highlight about the Health Care Proxy.

·      An Agent must be at least eighteen years of age. I would not recommend a younger person as an agent unless they have demonstrated maturity that defies their chronological age.

·      The Principal should inform the person they want to name as Agent of their decision prior to executing the actual document. The Agent can either accept or decline to act in that capacity.

·      A listed Alternate (“back up”) Agent is ALWAYS a good idea. And the same criteria I cited above for the Agent would be applicable here. Someone must be available to step in for the Agent if they become unable to serve in that capacity.

·      The Health Proxy should be for an indefinite period of time. I have rarely encountered a person who wants it to expire under a certain set of circumstances or on a specific date. How can any person know the future?

·      A Principal should always discuss their wishes with the Agent during capacity. The Health Care Proxy allows an Agent to follow a Principal’s wishes as he or she “knows them to be”—i.e. they do not need to be memorialized in the document.

·      However, the Principal is well within their right to elaborate on, limit or expand those powers within the document. The instructions can be brief or pages long. It is a highly personal document and the decisions that follow are personal as well.

·      A Health Care Proxy also addresses routine medical care, like doctors’ visits, medications, course of treatment, hospitalizations, surgical procedures and overall health. It covers all medical decisions, including “end of life.”

·       “End of life” treatment can also be explicitly addressed in the document.

  •  “End of life” includes, but is not limited to, mechanical respiration and ventilation as well as artificial nutrition and hydration, cardiopulmonary resuscitation (CPR), surgical procedures, blood transfusions, and even antibiotics.
  •   You can specify medical conditions by category and state what treatments you want or want withheld (examples of conditions are coma or an unconscious state with no chance of reversal, a terminal illness, or brain damage- like John in my hypothetical).
  • The Principal can either request that all life sustaining measures be taken or that they be withheld if a meaningful recovery is medically impossible and/or if the Principal’s diagnosis would not allow them to live a full or independent life. What a quality life means to the Principal differs for every person.
  •  The Principal must sign the document.
  • The Principal’s signature must be attested to by two witnesses who then also sign the document, but notarization is not required.
  • The witnesses have no right to read the Health Care Proxy. They are there to attest to the Principal’s state of mind as well as the voluntary nature of the document execution.
  • The Agent is never to be a witness.
  • The Health Care Proxy should be kept in a place accessible to family and emergency medical personnel; it’s location should be known to anyone who is important to you-especially your Agent. Copies should be made available to family and your physicians.

It is not a secret document.

Every person, once they reach eighteen years of age, should have a fully executed Health Care Proxy among their most personal and important documents. Your life is the most precious gift. When you are no longer able to speak for yourself, others should treat your life in accordance with your beliefs- with respect.

__________________________________________________________________

This article is part of a LinkedIn Series Pilot I was invited to participate in.

If you liked this article, please “like,” comment and share with others. I would love your feedback!

If you are a subscriber to the Series, thank you.

If you aren’t a subscriber, please consider doing so to follow my Series along to to its conclusion.

If you’d like to learn more about me and my law practice you can go here or, si hablas español, here.

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