Beware the Generic Health Care Proxy: Potential Problems and Unforseen Consequences

Attorney Todd Ratner of the Western Massachusetts law firm of Bacon\Wilson recently wrote an article about the possible dangers of filling out a generic Health Care Proxy at a hospital or clinic. The message to clients: not all health care proxies are equal.

Potential Problems. Hospitals often encourage or direct patients to complete a generic Health Care Proxy upon arrival to an emergency room or in advance of an operation. While the boilerplate form supplied by a hospital is legally sufficient and simple to complete, it does not necessarily cater to your specific circumstances and needs.

Furthermore, your admission to a hospital is not necessarily the best time to consider and make decisions regarding a possible terminal illness or to consider and select your health care decision-maker. It is obviously better, if given the opportunity, to contemplate and make important health care decisions in a less stressful situation and prior to the occurrence of a stressful or emergency medical event.

It can also be a problem if you have already executed a Health Care Proxy as part of your overall estate plan, and you then hastily fill-out and sign the hospital form. Execution of the new form revokes your prior Health Care Proxy, thereby stripping you of the carefully thought-out intentions provided for in the prior, now revoked document.

A Well-Drafted Health Care Proxy. The best Health Care Proxies are not simply forms, but are powerful legal instruments that address your unique concerns and intentions. A well-drafted Health Care Proxy should address the following:

• Living Will Language: Whether or not you wish to be kept alive by machines in the event that independent physicians concur that you are in an irreversible coma or other terminal condition with no chance of recovery
• Organ Donation: Whether or not you wish to be an organ donor
• Creation or Burial: Whether or not you wish to be cremated or buried
• Burial Instructions: Where and how you wish to be buried
• HIPPAA Sufficient Language: Authorizing another to review, request, and receive your medical documents while you are incapacitated
• Statement Regarding Same-Sex Marriage: A provision that prevents a hostile jurisdiction or change of law with regard to your same-sex marriage from revoking the entire instrument

If you already have a well-drafted Health Care Proxy. If you already have a well-prepared Health Care Proxy, be sure to ask the hospital whether they require you to fill out their generic form. If they do not, then instruct them that they should consult your existing Health Care Proxy. If you have a well-drafted Health Care Proxy sitting in your home or office file cabinet, prepare a letter to your primary care physician instructing her to place the instrument in your medical file; they are required to do so by law upon request.

If you do not have a well-drafted Health Care Proxy. An experienced estate planning attorney can provide you with the alternatives and options available to make the document suitable for your situation so that you do not have to rely on a boilerplate form filled-out under less-than-ideal circumstances.

What is a Health Care Proxy?