What Should I Know About Updating a Health Care Proxy During the Pandemic?

September 9, 2020

Seniors with compromised health are especially vulnerable to the Coronavirus (COVID-19). Anyone with chronic health problems may want to consider reviewing their health care proxy and make changes that reflect their long-term wishes.

What is a Health Care Proxy?

A health care proxy is a document someone creates that dictates that another person will act as their health care surrogate if they become unable to make important medical decisions for themselves. This agent can be a spouse, child, sibling, or a trusted friend.

Anyone can name a health care agent, and they do not have to be terminally ill to do so. Once a physician confirms an individual is incapacitated due to illness or injury, their proxy has the right to act on their behalf, according to their wishes. If that person recovers, they resume making their own medical decisions.

It is crucial for anyone creating a health care proxy to make their agent fully aware of these wishes. While these are tough conversations to have, they are necessary. COVID-19 is an ongoing threat to public health and can impact the details included in a person’s advanced directive, such as the following:

  • Feelings toward medical intervention, medication, and hospitals.
  • Religious and spiritual beliefs.
  • Person philosophy regarding illness, death, dying, and the afterlife.
  • Preferences about medical treatments, including life-sustaining efforts and end-of-life care.

Due to strict privacy regulations instituted under the federal 1996 Health Insurance Portability and Accountability Act (HIPAA), family members, even someone as close as a spouse, cannot ask questions about their loved one’s health care unless permission has been granted in writing. Health care proxies can be as detailed and specific as the holder desires.

What are the Responsibilities of a Health Care Agent?

Acting as another person’s health care proxy comes with incredible responsibility. Some of the responsibilities that come with being a health care agent include:

  • Accessing the patient’s medical records.
  • Asking questions about the diagnosis, treatments, and prognosis.
  • Scheduling appointments.
  • Seeking second-opinions.
  • Consenting to or refusing tests and treatments.
  • Giving permission to transfer the patient to another facility.
  • Making life-supporting decisions.
  • Organ donation and Do Not Resuscitate (DNR) orders.

Consider COVID-19 Outcomes When Creating or Updating a Health Care Proxy

While most people who contract COVID-19 will recover, others will experience severe and debilitating symptoms and a prolonged and challenging recuperation. It makes sense to consider this reality when creating a health care proxy and making accommodations to address possible COVID-19 treatment. COVID-19 treatment can require sedation, mechanical ventilation, and other serious procedures a patient may or not consent to if they have the choice.

In some states, if a non-critical patient does not have a health care agent, the hospital is required by law to petition the courts to appoint a guardian to make medical choices on their behalf. That process takes time, often weeks, leaving the patient in limbo while they wait for the court’s decision.

How is a Health Care Proxy Different from a Living Will?

A living will is another important document every individual should consider creating as part of their overall advanced directive. While a health care proxy names an individual to oversee another’s crucial health care decisions, a living will details their wishes, such as religious beliefs to whether they do or do not want life-saving interventions.

How Do I Make a Health Care Power of Attorney?

Naming a health care proxy is a straightforward process. The person interested in naming a health care agent records basic identifying information, such as their name, date of birth, and the person they choose to make decisions on their behalf if they are unable to.

Advanced directive laws and documents vary from state to state, so it is always a good idea to consult with a trusted elder law lawyer before completing any advanced directive documents.

What is a Backup Proxy?

Generally, two witnesses are required when the document is signed. Most attorneys recommend adding a backup proxy in case the first choice is unable to assist for any reason. Anyone designating a health care proxy and a secondary proxy should discuss their wishes with them in person and make sure they understand the responsibilities that are involved.

Tips to Make Sure a Health Care Proxy is Always Accessible

While it is practical to name a health care agent and make one’s medical wishes known in legal-binding advanced directive documents, that information is useless if it is hard to locate. Here are some ways to ensure one’s medical plan is available:

  • File a copy with a primary care physician and local hospitals. Request the information to be entered into online medical records.
  • Anyone who is hospitalized should provide a copy when admitted. The power of attorney (POA) can bring a copy as well.
  • A note or card stating that a health care proxy exists can always be kept in a wallet or in a purse.
  • Keep a health care proxy stored safely in a home lock box with other important documents.
  • Whenever a health care proxy is updated, provide new copies to the agent, other family members, family physicians, and local hospitals.

What if I Can Make Medical Decisions?

Some people are hesitant to designate a health care agent out of fear they are giving up control over their medical care prematurely. They should know the health care agent only steps in for someone who is unconscious or too sick to make their wishes known, whether that is temporary or permanent. If the patient recovers and understands what is happening, they can resume making their own decisions once again.

What are the Benefits of Advanced Planning?

For physicians, having a patient’s wishes about their care documented is invaluable. A health care agent and a living will clarify what quality of life means to the patient, and those directives guide health care staff to provide the level of care the patient really wants. It reduces second-guessing among providers, family, and friends.

How Do I Update a Health Care Proxy?

Elder law attorneys often recommend that clients reevaluate their advanced directive on a regular basis. For many people, COVID-19 raised new questions about what type of care they want should them become too sick to communicate on their own.

Things to consider when updating an existing health care power of attorney:

  • Many elder law attorneys are working remotely to practice safe social distancing. Legal documents can be executed and notarized online and remotely as needed.
  • Consider if the named agent still makes sense. They should be fully aware of their expectations and ready to assume their loved one’s medical decisions at any time.
  • Review the definition of “medical treatment.” During the time of COVID-19, that potentially means breathing, feeding, and hydrating by artificial means.

A health care proxy is an agent responsible for carrying out a person’s wishes when they become too sick. They are the voice of the patient who cannot speak for themselves and should be a part of every person’s process of planning for the future. A dedicated lawyer will help one assist with a health care proxy.

Westchester Elder Law Lawyers at Korsinsky & Klein, LLP Help Clients Make Important Health Care Decisions

As we continue the fight against the spread of COVID-19, it is now more important than ever to plan for the future. Our Westchester elder law lawyers at Korsinsky & Klein, LLP advise clients to review their advanced directive documents. Regardless of your age or health status, it always makes sense to reassess your wishes for any medical treatments you may receive in the future. Call us at 212-495-8133 or complete our online form for an initial consultation. Located in Brooklyn and Manhattan, New York, as well as Lakewood, New Jersey, we serve clients throughout New York and New Jersey.