The Health Care Proxy is a simple legal document that allows you to name someone you know and trust to serve as your Agent and make health care decisions for you if, for any reason and at any time, you become unable to make or communicate those decisions.  It's an important document, however, because it concerns not only the choices you make about your health care, but also the relationships you have with your physician, family, and others who may be involved with your care.

Your Agent will make decisions about your health care only when you are, for some reason, unable to do so yourself.  This means that your Agent can act for you if you are temporarily unconscious, in a coma, or have some other condition in which you cannot make or communicate health care decisions.  Your Agent cannot act for you until your doctor determines, in writing, that you lack the ability to make health care decisions.  Your doctor will tell you of this if there is any sign that you would understand it.

Acting with your authority, your Agent can make any health care decision that you could, if you were able.  If you give your Agent full authority to act for you, he or she can consent to or refuse any medical treatment, including treatment that could keep you alive.

Your Agent will make decisions for you only after talking with your doctor or health care provider, and after fully considering all the options regarding diagnosis, prognosis, and treatment of your illness or condition.  Your Agent has the legal right to get any information, including confidential medical information, necessary to make informed decisions for you.

Your Agent will make health care decisions for you according to your wishes or according to his/her assessment of your wishes, including your religious or moral beliefs.  You may wish to talk first with your doctor, religious advisor, or other people before giving instructions to your Agent.  It is very important that you talk with your Agent so that he or she knows what is important to you.  If your Agent doesn't know what your wishes would be in a particular situation, your Agent will decide based on what he or she thinks would be in your best interests.  After your doctor has determined that you lack the ability to make health care decisions, if you still object to any decisions made by your Agent, your own decisions will be honored unless a Court determines that you lack capacity to make health care decisions.

Your Agent’s decisions will have the same authority as your's would, if you were able, and will be honored over those of any other person, except for any limitation you yourself made, or except for a Court Order specifically overriding the Proxy.

Health Care Proxies differ from state to state and are created under state law.  Your state of residence will determine the form you should use, as well as whether you need to sign a second document, called a Living Will.  Some states incorporate the living will provisions right into their Health Care Proxies, but whatever the case, the living will lets you give specific instructions about any aspect of your health care.  Some of the choices you can make by the living will include expressing your wishes regarding the provision, withholding or withdrawal of treatment to keep you alive, including the provision of artificial nutrition and hydration, as well as the provision of pain relief.

Finally, some states have language in their Health Care Proxy that allows you to indicate your willingness to donate organs.  As always the case in these matters, it is a good idea to inform your family members of your desire to be an organ donor and to keep a donor card in your wallet.  Time is usually of the essence.

This article was written by Attorney Neil Cohen from the Boston law firm of Broude & Hochberg, LLP.  Neil specializes in the area of estate and gift tax planning.  For more information, please visit the firm website at www.broude.com.