Health Care Proxy
Kimberly Jetty, JD, MPH student, School of Law, Research Liaison
Anthony Szczygiel, Professor, Legal Services for the Elderly Clinic, School of Law
University at Buffalo Law School
Sally Speed, Training Director, Medicaid Training Institute
Award: 34963
Project: 1044887
Task: 2
Funding for this research project was provided by Department of Health Training Resource System, Contract year 2005: Project 1044887, Award: 34963; Contract year 2006: Project 1052504, Award 38403, through the Center for Development of Human Services, College Relations Group, Research Foundation of SUNY, Buffalo State College.
Abstract
Local district Medicaid eligibility staff encounter many cases/situations that raise a question regarding surrogate decision-making. This creates an intersection between the law and local district Medicaid eligibility staff’ responses to surrogate decision-making. It is important for local district Medicaid eligibility staff to develop an understanding of the implications of the legal system’s responses in these cases. This will allow local district Medicaid eligibility staff to appropriately address the needs of a situation involving surrogate decision-making. This is updated information for the New York State Training Institute regarding the legal and related topics important to the local district Medicaid eligibility staff. The materials will initially provide a broad overview of the legal responses pertaining to surrogate decision-making and subsequently establish more specific topics for future trainings.
Health Care Proxies
What is a Health Care Proxy?
A health care proxy is a legal document that allows an individual (the principal) to appoint another person as their health care agent. This health care agent would make health care decisions for the principal if the principal becomes unable to make their own health care decisions.
Why would anyone want to execute a health care proxy?
It is important to plan for the future. If a person has not made their wishes regarding medical treatment clear in writing and becomes unable to make their own health care decisions, then a court may be the one who makes the decisions on behalf of that person.
How do you execute a health care proxy?
Any competent adult can execute a health care proxy. An attorney is not needed to execute a health care proxy. The New York State Department has a health care proxy form that can be used this form does not have to be used.
A health care proxy must contain the following elements:
-name of the adult (the principal) creating the proxy
-health care agent’s name
-a statement saying that the principal intends for the agent to make health care decisions on their behalf
-principals signature and the date of the signature
-signature of two witness, the date, and a statement by the two witnesses saying that the principal appeared to create the proxy willingly
A health care proxy may contain the following elements (optional):
-statements of the principal’s wishes or limitations on the agent’s authority
-designation of an alternate agent
-date that the proxy expires or a description of events that will activate the expiration of the proxy
-agents signature
There is no requirement that the form be notarized.
What should be done after the proxy is executed?
A photocopy of a health care proxy is just as valid as the original. After the proxy is executed the principal should make photocopies and give a copy to his or her physician, the health care agent, and anyone else that is involved in making health care decisions for the principal. The proxy should be reviewed periodically.
How should a health care agent be selected?
The principal should appoint a person who they can trust and can communicate openly with.
Will other states uphold my health care proxy?
Not many states have statutes that state that health care proxies from other states will be honored. If a person spends a great amount of time in another state he/she should execute a health care proxy in that state also. For example, if a person spends the winters in Florida and the summers in New York then they should have a health care proxy executed in accordance with New York State laws and one executed in accordance with Florida laws. If there is a great amount of distance between the states then the person may want to appoint a different health care agent in each proxy.
Where can I go to get information about the health care proxy laws in other states?
Choice of Dying is a national organization that can provide a person about the health care decision making laws of other states. This organization is located at:
200 Varick Street
New York, NY 10014
Phone: (212) 366-5540
Once a health care proxy is executed is it permanent?
No, a principal can revoke their health care proxy by:
1. Informing the agent orally or in writing, or
2. By executing another proxy, or
3. By any other actions which show an intent to revoke the proxy
The proxy is valid indefinitely unless the principal states in the proxy itself that the proxy will expire on a specific date or on the occurrence of a specific event.
Can a third-party revoke the principal’s health care proxy?
Yes, a third-party can bring a special proceeding to:
1. Challenge the validity of the health care proxy,
2. Remove the health care agent, or
3. Challenge an agent’s decision based on the “grounds that the agent is not reasonably available, willing, and competent to fulfill his or her obligations.”
When does the health care agent’s authority begin and end?
The health care agent’s decision making authority begins when it is determined that the principal is incompetent and cannot make their own health care decision. If at a later date it is determined that the principal has the ability to make their own health care decisions then the agent’s decision making authority ends.
How is it determined that the principal is incompetent?
The statute that governs health care proxies presumes that every adult is competent unless it is show otherwise. The attending physician decides whether or not the principal is competent to make their own health care decisions. If the physician determines that the principal is incompetent then the physician writes this determination in the principal’s medical records. If this is a situation that involves a decision to withhold or withdraw life-sustaining treatment, the attending physician’s determination of incompetence must be reviewed by another physician.
Can a principal challenge a determination of incompetence?
What authority does the appointed health care agent have?
The health care agent can make any health care decisions that the principal could make if the principal was competent to make their own decisions.
Can the agent’s decision making authority be limited?
Yes, the principal can limit the agent’s authority by stating the limitations in the health care proxy.
How does the agent make a health care decision?
After consulting with a license physician, registered nurse, licensed psychologist, licensed master social worker, or licensed clinical social work the agent makes a decision on behalf of the principal.
The agent’s decision needs to be in agreement with the principal’s wishes, moral, and religious beliefs. If the agent does not know what the principal’s wishes are and cannot reasonably determine the principal’s wishes then the decisions needs to be made in accordance with the principal’s best interest.
If the agent does not specifically know what the principal’s wishes are in regards to artificial nutrition and hydration, then the agent does NOT have the power to make decisions regarding these issues. The agent’s knowledge about artificial nutrition and hydration can come from past oral statements made by the principal and the knowledge of the principal’s moral, religious, and other beliefs about health care.
Does my health care agent have access to my medical information?
If this is not a law prohibiting it, the agent is allowed access to any medical or clinical forms needed to make an informed decision.
How do I express my wishes regarding artificial nutrition and hydration?
The best way to express these wishes is for the principal to write their wishes about artificial nutrition and hydration in their health care proxy or elsewhere.
Should I include information about:
Alternate agents
Restrictions on who can the appointment of an agent
Statute Review
McKinney’s Public Health Law §2981(1)-Appointment of health care agent; health care proxy. NY PUB Health §2981
This section of the statute sets forth who can appoint a health care agent and who can become a health care agent. This section of the statute says that any competent adult can appoint another person to act as their health care agent. This statute presumes that every adult is competent unless it has already been determined that the adult is incompetent or if a committee or guardian has been appointed for the adult.
This section also sets limitations on who can become a health care agent. First, an operator, administrator or employee of a hospital may NOT be a health care agent to a person who, at the time of the appointment, is, or has applied for admission to this hospital. Second, a physician who is appointed as a person’s health care agent cannot act as that person’s primary physician after the health care proxy has taken effect. Third, if a person is appointed as a health care agent for ten or more principals he cannot act as a health care agent to anyone other principal, unless the principal is the agent’s spouse, child, parent, brother, sister, or grandparent of the principal, or is the issue of, or married to the principal.
McKinney’s Public Health Law §2981 (2) Health Care Proxy; execution; witnesses. NY PUB Health §2981(2).
This section of the statute explains how a valid health care proxy is executed. Any competent adult can appoint a health care agent by way of a health care proxy. The health care proxy is a document and it must be signed by the person appointing another as their health care agent (the principal) in front of two adult witnesses. If the principal cannot sign the proxy, then another can sign for the principal. The witnesses must state that the principal signed the health care proxy voluntarily and without duress. The person being appointed as the health care agent cannot act as a witness.
McKinney’s Public Health Law §2981 (5), Contents and form of health care proxy. NY PUB Health §2981(5)
The statute sets forth the content of a valid health care proxy. In order to be valid, a health care proxy must contain the names of both the principal and the agent and it must state that the principal intends to give the agent the authority to make health care decisions on their behalf.
A health care proxy may also contain the principal’s wishes/instruction and limitations about their health care decisions. Also, the proxy may state that it expires on a specific date or when a certain condition occurs. If the proxy does not include either or these then it shall remain in effect until it is revoked. If, before the proxy expires, the authority of the agent has begun, the proxy will not expire while the principal lacks capacity.
McKinney’s Public Health Law §2981(6); Alternate Agent. NY PUB Health §2981 (6)
A competent adult may appoint an alternate health care agent to take the place of their appointed agent when the principal’s primary physician has put in writing that the appointed agent is not reasonably available, willing, and competent to serve as the agent AND that this agent is not expected to become reasonable available, willing, and competent in order to make a timely decision given the circumstances of the patient’s medical situation.
If the appointed agent becomes available, willing, and competent after the alternative agent’s authority has commenced then the authority of the alternative agent ends and the appointed agent’s authority begins.
McKinney’s Public Health Law §2981(4); Commencement of Agent’s Authority. NY PUB Health §2981(4).
A health care agent’s authority begins when a decision is made, in accordance with section 2983 of this statute, that the principal cannot make their own health care decisions.
McKinney’s Public Health Law § 2982(1)-(2); Rights and Duties of Agent-Scope of Authority. NY PUB Health §2982(1)-(2).
This section states that a health care agent has the power to make any and all health care decisions on the principal’s behalf that the principal could make for themselves. This is true, unless the principal has expressly limited the agent’s power in the health care proxy itself.
This statute also sets a decision-making standard that the agent must follow when making a health care decision on behalf of the principal. After consulting with to a license physician, registered nurse, licensed psychologist, licensed master social worker, or licensed clinical social work, the agent must make a decision on behalf of the principal that is in agreement with the principal’s wishes, this includes the principles moral and religious belief. If the principal’s wishes are not reasonably known and cannot be determined with reasonable diligence, then the decision must be in agreement with the principal’s best interest. If the principal’s wishes in regards to artificial nutrition or hydration are not known, or cannot be determined with reasonable diligence, then the agent does NOT have the power to make decisions regarding artificial nutrition and hydration.
McKinney’s Public Health Law § 2982(3); Right to receive information. NY PUB Health §2982(3).
The agent has the right to obtain the principal’s medical information and clinical and medical records necessary to make an informed decision regarding the principal’s health care. This is true, unless there is a law that says otherwise.
McKinney’s Public Health Law § 2982(4); Priority over other surrogates. NY PUB Health §2982(4).
This section of the statute states that a health care decision made by the
principal’s health care agent on the principal’s behalf takes precedent over decisions
made by other people, unless the principal’s health care proxy states otherwise.
McKinney’s Public Health Law § 2983(1); Determination of lack of capacity to make health care decisions for the purpose of empowering agent. NY PUB Health §2983(1)
A health care agent’s power begins when it is determined that the principal lacks the capacity to make their own health care decisions. The statute gives the principal’s attending physician the power to make the determination of whether or not the principal lacks capacity. The attending physician’s determination of the principal’s capacity must be made to a reasonable degree of medical certainty. This determination must be done in writing. The writing shall contain the attending physician’s opinion regarding the cause and nature of the principal’s incapacity as well as the extent and the duration. This determination will be put in the principal’s medical record.