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In The Age Of COVID-19 Health Care Proxies Are Critical

“By failing to prepare, you are preparing to fail.” – Benjamin Franklin

Among all the daily news and dire reports regarding the COVID-19 pandemic, it is easy to lose a sense of control over major life issues. One thing we do have control over is getting vital documents in place and in order.

A Health Care Proxy is one of three core documents all people age 18 or older should complete (the other two being a Will and Power of Attorney). A Health Care Proxy is necessary both when you have the temporary inability to make medical decisions for yourself as well as an end-of-life situation, should you have a permanent inability to make such decisions and are declared to have little to no likelihood of survival. While the reasons for completing a Health Care Proxy are many, I have narrowed them down to four:

To Ensure Your Final Wishes are Carried Out.

Understandably, thinking of yourself in an end of life situation without any capacity to make decisions is an unpleasant thought. However, for most people, the thought of being kept alive by artificial means for weeks or months on end is much worse.

A Health Care Proxy authorizes another individual (usually a spouse, significant other or adult child) to carry out your health care wishes and, among other powers, allows him or her to enter a Do Not Resuscitate Order (“DNR”) on your behalf to relieve an end of life situation. Generally, without a Health Care Proxy all reasonable medical treatments will continue to be provided and people may be kept alive by artificial means indefinitely or until a court order can be obtained to remove such measures.

To Authorize the Ability to Obtain and Review Medical Records and Seek a Second Opinion.

An up to date Health Care Proxy should reference and authorize your agents to obtain and review your medical records in compliance with the otherwise very strict Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy regulations. This allows your agents the discretion, among other powers, to direct medical treatment, confirm the severity of your medical condition to family members or seek a second opinion if warranted.

To Control How Much Discretion your Agent has.

The persons you select as primary and successor agents should be aware of your wishes and beliefs when it comes to medical and end of life issues. However, there may be situations where your health care agent may falter or “hope for a miracle” and keep you alive by artificial means longer than you prefer.

For this reason, a Health Care Proxy may contain a specific, maximum number of discretionary days your agent may wait to authorize a DNR order. However, after such time expires, their discretion ends and your agent is then directed to enter a DNR order on your behalf.

Other practical reasons for specifying a timeframe are if you have relatives living out of state that would need to be notified or consulted prior to your passing or if you wish to give your agent time to review records and seek a second medical opinion.

To Alert Medical Authorities you are an Organ Donor.

If you are a registered organ donor or wish to become one, such should be listed in the Health Care Proxy. Even if you have an organ donor card or have the designation listed on your driver’s license, this is another means to alert officials of your final wishes. You can also specify that vital organs go to any family members in need first and then the general public. Making your intentions clearly known to the medical facility can save and prolong the lives of loved ones or other people in need.

A Health Care Proxy is usually the shortest and fastest estate planning document to complete. It requires the appointment of a primary agent and successor agent(s) along with their contact information, including phone numbers, which should be kept current. Once completed, a copy should be given to your primary care physician and any other facility where you obtain medical treatment. Your primary care doctor should have your Health Care Proxy saved electronically so another facility can quickly obtain it when authorized and necessary.

A Health Care Proxy takes little time to complete yet can save your family and loved ones many weeks or months of emotional turmoil. It can also avoid escalating legal and medical costs if your condition allows you to be kept alive indefinitely by artificial means. As with all estate planning, the peace of mind you provide yourself and your loved ones far outweighs the time and expense of getting your core documents in order. Stay well, yet be prepared.

*This article is for informational purposes only and should not be construed as legal advice.

James S. Rizzo is an attorney with the law firm of Rheinhardt and Bray, P.C., with offices in Rome, Ilion and serving the central New York area. He has more than 24 years of legal experience and concentrates in Estate Planning matters, including Wills, Revocable and Irrevocable Trusts, Powers of Attorney, Health Care Proxies, Asset Protection, Medicaid/Nursing Home applications and related issues. He can be reached at jrizzo@cnyelderlaw.com or 315-339-0503 for a confidential, initial consultation.