Who Makes Your Health Care Decisions?

By: Sanford R. Altman, Esq., retired

Question:
I’ve heard the horror stories about people in comas being on life support for ages and their family fighting it out in court. What can be done to prevent this?

Answer:
New York State Law provides that you can appoint someone to make your health care decisions if you are unable to do so. The document authorized to accomplish this is the Health Care Proxy. This is something that EVERYONE should have, old and young adults alike. This is because Health Care Proxies may be used in many different situations. While you may automatically think of the coma situation or a circumstance where an individual has dementia and cannot make decisions, the Health Care Proxy can also apply to one who has been in a car accident and is, at the moment, unconscious. While a hospital may listen to the decision of family members, if they disagree or a particular family member is not the one you would have chosen, your wishes might never be carried out. A Health Care Proxy where you designate your choice of agent (and a back-up) can prevent this.

As with any legal document, especially one that may have such a severe impact on your life, care should be taken. Of course, make sure that the health care agent you choose, is one that can be trusted to carry out your wishes as opposed to his or her feelings or beliefs. From a practical standpoint, it is a good idea to have your primary agent or, at least, your back-up, geographically close to you in the event of an emergency.

A point of discussion is that section of the Health Care Proxy which allows you to add your own instructions. I always advise my clients to leave that section blank. Why? Adding instructions essentially allows the doctor to use his own interpretation as to your wishes and ignore the directions of your chosen health care agent. This is how we end up in court where nothing happens until a judge decides your fate. This was brought home to me by a call I received from a client whose father was seriously ill in a local hospital and had a Health Care Proxy which directed that she be kept off life support unless there was a “reasonable expectation” of her survival. The doctors disagreed with the family on whether her expectation of survival was “reasonable” and refused to remove the life support as the family wished.

At the other end of the spectrum, there was a client who had a stroke and was basically in good shape except his throat was closed and he could not swallow or talk. He had previously signed a form stating that he did not want artificial nutrition and hydration. Fortunately, he was conscious and alert and, when the doctors showed him the form and asked for his permission to give him liquids through an IV so he would not die of thirst, he was able to vigorously nod his head “yes.” Otherwise, he may not have survived his hospital stay.

What is the best course of action? Fully discuss your wishes with your agent and back-up agent. This will allow them to best assess the course of action for you under the circumstances that arise. Specifically discuss your wishes as to artificial nutrition and hydration (food and water) since your agents cannot make such decisions without a prior discussion with you.

As you may have guessed, I am not a big fan of “Living Wills” which is almost entirely composed of a list of instructions open to interpretation by any health care provider. If you do feel the need to have a Living Will, make sure that you include a provision of assigning someone such as a family member to be the final arbiter of any disputes over interpretations. This will give that individual added authority and may well achieve your goal of keeping these vital decisions where you want them – in the hands of your family.