- Who Needs a Health Care Proxy or Agent?
- What Are the Duties of a Health Care Proxy?
- How to Become a Health Care Proxy?
- What Happens If You Don’t Have a Health Care Proxy?
- What Legal Protections Does a Health Care Proxy Have?
- What Recourse Do I Have If a Health Care Provider Refuses To Cooperate with My Health Care Proxy?
A health care proxy is a person you designate to make decisions about your care if you become incapacitated. The power of attorney for health care used to designate such a person is also sometimes known as a health care proxy. In Illinois, the legal term for a health care proxy is health care agent. Their primary job is to direct your treatment according to your wishes. If you do not have a health care agent, your doctors must turn to family or friends, as specified by law, to make decisions about your care. They may not know your wishes or be willing to carry them out.
Who Needs a Health Care Proxy or Agent?
All adults should have a health care proxy because doing so provides control over medical treatment when you lack the capacity to communicate your wishes. The older you are, the more important it is to have a health care proxy.
It is always advisable to have a health care power of attorney. However, you should designate a health care agent as soon as possible under the following circumstances:
- You are older.
- You have a chronic illness.
- You have concerns about medical or end-of-life care.
- You have a high-risk job.
- You engage in high-risk activities.
- You are uncomfortable trusting just any family member to make medical decisions for you.
Once you become incapacitated, whether because of a sudden accident or a health condition, it will be too late to decide who will direct your care. If you have not designated an agent ahead of time, the court will appoint a legal guardian or surrogate to make decisions for you that could amount to life or death. This person may or may not be someone who knows your wishes or has your best interests at heart. Planning ahead while you have the capacity is the only way to be certain that someone you trust will be in control of your care.
What Are the Duties of a Health Care Proxy?
The primary duty of a health care agent is to make necessary medical decisions about your health care according to your wishes. Your health care proxy will have the following duties and powers, subject to any limitations you specify:
- Be informed about your medical options and the risks and benefits of each
- Consent to or refuse diagnostic tests, medical treatment, and surgery
- Authorize medical providers to start, continue, or withdraw life support
- Instruct providers on whether to resuscitate you if you suffer cardiac arrest
- Approve who else can view your medical records
- Authorize an autopsy
- Donate your remains to science
- Direct the disposition of your remains
An agent or proxy has the same authority to make these decisions and direct your care as you would if you were not incapacitated. It is essentially the same power a parent has to make decisions on behalf of a child. However, your agent only has this power if you lack the capacity to make these decisions yourself. Designating someone as an agent or proxy does not give them the power to make decisions when you are still capable of directing your health care. The power of attorney for health care is triggered when you become incapacitated.
How to Become a Health Care Proxy?
There are no licenses or credentials required to be a health care proxy. The only way to become someone’s proxy is for that person, known as the principal, to list you as an agent on their power of attorney for health care. Requirements vary from state to state. To qualify as someone’s health care agent in Illinois, you must be 18 years of age, mentally competent, and not the principal’s health care provider.
While the Illinois Department of Public Health provides a Power of Attorney Health Care form on its website, you are not required to use it and can draft one tailored to your needs. Regardless of the form used, the principal must sign it in the presence of two witnesses who are not immediate family members, owners or operators of health care facilities, or health care providers treating the principal. They can also have the form notarized, but it is not required.
The health care proxy must be willing to carry out the principal’s wishes. They must also be willing to make decisions according to the principals’ values when circumstances arise that are not covered by the power of attorney’s explicit instructions. The principal may also appoint successor agents to serve if the primary proxy cannot fulfill the role.
What Happens If You Don’t Have a Health Care Proxy?
If you become incapacitated and do not have a health care agent, the court will appoint a surrogate to make decisions on your behalf. Two doctors must certify that you lack the capacity to make your own health care decisions before a surrogate can be appointed.
In Illinois, the court must appoint the surrogate from the following list in order of priority:
- Guardian
- Spouses
- Adult Children
- Parents
- Adult Siblings
- Adult Grandchildren
- Close Friends
- Guardian of the estate
Powers of a Health Care Surrogate
Health care surrogates generally have lesser powers compared to health care agents. While they have the duty and authority to make most medical decisions on your behalf, they have some limitations that agents do not have. For instance, surrogates cannot tell a health care provider to withdraw or withhold life-sustaining treatment unless you have a qualifying condition. In Illinois, there are only three qualifying conditions:
- A terminal condition from which you cannot recover and death is imminent
- Permanent unconsciousness
- An incurable or irreversible condition that will ultimately lead to death that causes severe pain or other symptoms amounting to an inhumane burden
Surrogates also cannot authorize mental health treatment unless they are court-appointed guardians.
Advance Directives
Advance directives are written instructions you provide for health care providers while you are of sound mind, authorizing them to perform specified actions in various scenarios.
The power of attorney for health care is a type of advance directive. The other types are:
- Living wills – Written instructions telling your health care provider whether you want treatment that will delay death if you suffer a terminal condition and are unable to express your wishes
- Practitioner Orders for Life-Sustaining Treatment, or POLST – Written instructions specifying whether you want to be resuscitated if your heart stops beating or you stop breathing
- A mental health treatment preference declaration — Written instructions telling your doctor whether you want specific mental health treatment, including electroconvulsive treatment, psychotropic drugs, and admission into a facility
Most hospitals and doctor’s offices provide pre-printed fill-in-the-blank advance directive forms upon request, but you also have the option to use a more detailed, customized form prepared by an attorney.
If you do not designate an agent, you will generally still have a surrogate. The surrogate will not be able to outweigh the instructions you provided in your advance directives. You can also limit a health care agent’s powers in your advance directives according to your preferences.
What Legal Protections Does a Health Care Proxy Have?
A health care proxy cannot be held civilly liable for negative medical outcomes, including death, as long as they have acted in good faith and in the principal’s best interests and followed the instructions to the best of their ability. The proxy also cannot be charged with criminal homicide for withholding or withdrawing life-sustaining treatment in compliance with the principal’s wishes as laid out in a health care power of attorney.
What Recourse Do I Have If a Health Care Provider Refuses To Cooperate with My Health Care Proxy?
Doctors must respect the terms of any type of advance directive you prepare ahead of a medical crisis during which you lack capacity, whether it is a Health Care Power of Attorney or any other type of advance directive.
If you or your loved one has suffered harm because a doctor has violated advance directives or a power of attorney for health care, you may have grounds to file a medical malpractice lawsuit. Since 1992, we have recovered over a billion dollars in verdicts and settlements for injured clients.
Contact us online today or call (312) 332-2872 to schedule a free case evaluation.
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