Selection of your agent is the most important decision made when completing your Health Care Power of Attorney (HCPOA). Your agent will make health care decisions for you when you are unable to make them for yourself. Before selecting the appropriate person, you should have a understanding of what the job is. Once the position is understood, select the best candidate to fill the position. After selecting the person, obtain the agent’s consent to serve. Then educate your agent on your desires. Also, select alternates to act if your first choice is unwilling or unable to serve. Finally, you need to properly implement your plan.
THE JOB OF HEALTH CARE AGENT
The job is to make health care decisions on your behalf if you are unable to make those decisions for yourself. The types of decisions can involve anything from routine health care to the termination of life sustaining treatment. Here are some of the important qualifications for your health care agent.
- Knowledge of your preferences and desires.
- Willingness to honor your wishes rather than the agent’s desires.
- Depending upon your age and mobility factors, available to attend health care appointments.
- Must be a strong advocate for your wishes.
- Emotionally tough enough to make difficult decisions.
- Your agent must be able to withstand pressure from family members or friends that disagree with the decisions being made.
The job may require other qualifications, but this overview should give you sufficient information to make the proper selection.
WHO SHOULD I SELECT AS MY HEALTH CARE AGENT
Most of the time the appropriate choice for agent will be obvious. Unlike financial agents where more than one may serve, you must select only one agent to act at a time. When no obvious choice exists or several choices seem equally appropriate, discussing the decision with an experience estate planning attorney can be very helpful. The following are some ideas I have shared with clients in the past about the selection. The following categories are listed in the order of usual selection.
- SPOUSE-if you are married and your spouse is able to serve, usually you should name your spouse. Even if your daughter, son, or best friend is a doctor or nurse, the spouse should normally be the decision maker. The agent still should consult with those with more health care experience before making important decisions. If you are in a long-term relationship with someone not your spouse, you should carefully determine whether that individual should be named.
- ADULT CHILDREN-if no spouse is available to serve, adult children usually are the next choice. When determining whether an adult child should serve, the job qualifications listed above should be carefully considered. Young adults (18-30) may be bypassed due to the availability of other better choices in the next category.
- PARENTS, SIBLINGS, NIECES AND NEPHEWS-family members are normally the next category considered. Since you have a long term history with these individuals, you should be in a good position to evaluate how they best meet the job qualifications. When selecting parents, it is important to have an alternate agent of a younger age selected.
- FRIENDS- a friend may be the appropriate choice. Usually friends are selected after family members are either unavailable or lack the qualifications your friend may have.
Your choice should be reviewed periodically for appropriateness. If you have young children when the documents are initially prepared, you may consider adding them as agent or alternate agent as they get older. I recommend naming at least two alternate agents. Keep in mind the age and health of the agent when selecting.
IMPLEMENTING THE SELECTION OF YOUR HEALTH CARE AGENT
Once your agent consents to being named, the following steps should be taken to complete the process.
- Consult an experienced estate planning attorney to have your HCPOA properly prepared and signed.
- Discuss your health care preferences with your agent and your medical providers.
- End-of-life treatment
- Organ donation
- When Do-Not-Resuscitate order is appropriate
- Use of hospice
- Pain control
- Admission to a nursing home or other health care facility
- Make sure your agent and medical professionals have access to your HCPOA
- Provide agents a copy
- Direct inclusion of your HCPOA in your medical record
- Keep a copy in the glove compartment of your car or luggage when travelling
- Periodically review your HCPOA for potential changes
- Agent selection no longer appropriate
- Addressing a new medical condition
- Check local practices when permanently relocating to another state or spending significant time in another state.
Your entire estate plan including your HCPOA should be reviewed with an estate planning attorney every 2-3 years or sooner if circumstances change. Failure to have properly prepared documents may result in an otherwise unnecessary and costly guardianship proceeding.