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How To Handle Your Health Care Proxy
There's no simpler estate planning document than a health care proxy in which you name someone to make medical decisions for you if you're incapacitated. You can pick up a standard proxy form at any legal stationery store and fill it in without a lawyer's help.
So much for the easy stuff
The hard part is choosing the right person. You want an agent who's persistent, intelligent and confident -- someone who'll push doctors for more information, be smart enough to assess conflicting medical recommendations and decisive enough to make choices some members of your family may disagree with. Your health care agent must understand your wishes and be capable of carrying them out, regardless of his or her own feelings.
That's a very tough job -- perhaps too tough for the person closest to youIn some cases, a close friend or a relative by marriage. may be a better choice than your spouse. "When there's a nurse or a doctor in the family, people often lean toward appointing that person as their agent.
New York law lets you name only one health care agent. "If you don't want to offend anybody by leaving them out, you can appoint one family member as your agent and name the others as successor agents. And if you're in your 70s or 80s and appoint one of your contemporaries," he adds, "the successors should be younger."
Your agent should also live near you, or be willing and able to travel and stay nearby if it becomes necessary. "Distance really doesn't matter when you name an executor, a trustee or a power of attorney. Telephone, fax and e-mail have made it a small world. But for health care decisions, use a local agent. Doctors aren't as easily consulted over the phone."
One reason a health care proxy is such a simple document is that it doesn't give any instructions. It merely names an agent and says that he or she knows your wishes and has your authority to carry them out. You can make your agent's job less stressful by also signing a living will.
A living will does give instructions. It says, for example, whether you do or don't want to be kept alive with a feeding tube in the event that there's no hope you'll recover. Living will forms are available at legal stationery stores, too, and some religious organizations even provide their own. (An Orthodox Jewish living will provides for a rabbi to be involved in the decision-making, for example.) But you may want a lawyer to enhance an off-the-shelf document for you. A custom-tailored living will addresses issues not covered in the standard form, like whether you want medication to alleviate pain even if it shortens your life, and whether you want to be kept alive on machines for a short time if that's necessary to be an organ donor.
A lawyer can also amend the standard health care proxy to include a reference to the Health Insurance Portability and Accountability Act (HIPAA), the law passed in 1996 that went into effect this year, which restricts access to medical records. To make sure your agent gets access to your records. I designate my agent to be my personal representative in compliance with federal HIPAA laws and regulations."
Discuss your wishes with your doctor, too. And if possible, find out before being admitted to a hospital or a nursing home whether it honors these documents. Like many states, New York lets health care institutions refuse to terminate life support systems on religious grounds. But by law, the "institutions" are required to disclose this policy when they admit you.
If you're already there, and they can't honor your directives, they're required to transfer you to a facility that can.
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