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Designating a Health Care Surrogate

If you cannot manage your medical care, you can appoint someone to handle it for you

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I recently gave a Legal Topics for Caregivers talk for a company’s employees as part of their employee assistance program. When we got to the subject of health care directives, I overheard a participant say to her coworker, “We just never discussed this stuff in my family. It was all considered private.” She is not alone in this. In many families, some subjects are considered off-limits. 

When it comes to your health, an open and honest conversation with your family cannot go unspoken. Through these conversations, you can establish a family care plan — this means making sure you are aware of your genetic history, that your loved ones know what your wishes are if you can’t speak for yourself, and that you select people to have the legal authority to talk to your doctors and make medical decisions for you if you can’t communicate. 

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Talking about your wishes openly and matter-of-factly will set the tone and start the process. Creating your legal documents is the next step. And follow-up conversations as health needs change over time will keep everyone on the same page.

Designate a health care surrogate

Formalizing your family care plan means creating a medical directive called a health care surrogate designation.

A health care surrogate designation (also called a health care proxy or medical power of attorney) is a legal document that appoints a person to become your “surrogate” if you become incapacitated. (Incapacity is defined as the physical or mental inability, such as serious illness or dementia, to manage your affairs.) It is part of your advanced directive documents.

The designation document gives your surrogate legal authority to talk to your doctors, manage your medical care and even make medical decisions for you if you cannot do so. 

Your surrogate can review your records, authorize diagnostic procedures or provide informed consent to surgical procedures, and even refuse or consent to life support.

You don’t have to be incapacitated

You can also create a designation that gives your surrogate authority to act on your behalf even if you are not incapacitated. This can be helpful for caregivers, especially if a loved one has a chronic illness and may have the mental capacity to decide their course of treatment, but may not have the energy to manage their medical care.

It also may come into play if a loved one is under influence of medications that make it difficult to talk to doctors and remember the conversation.

If you are contemplating a surgery with a long recovery time or facing a long-term health issue, creating this kind of surrogate designation may be the right choice.

Creating a health care surrogate document

No matter the kind of surrogate designation that is right for you today, what is important is that you create one without delay. This is an important part of taking care of your legal affairs.

While most of us hope for a long and healthy life, catastrophic events can happen anytime to anyone. And tragedies are only compounded when we are left to guess what an incapacitated patient would want for their medical care or, even worse, when the patient’s loved ones disagree about how to best help the patient.

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Health care surrogate designation documents are readily accessible for free online, are easy for most people to understand, and (in most cases) can be filled out in the comfort of your own home. If you prefer, an attorney can prepare these documents for you and answer any questions you may have.

It can’t be said enough: Every person over age 18 should have one. That means every adult in your family, from the college students to the great-grandparents, can and should join the conversation about a family care plan.

Choose the right medical decision-maker

Several considerations should be taken into account when choosing the best surrogate, such as:

Location. In the event of a medical emergency, would the surrogate be able to be at your bedside or would they be managing from a great distance? Is there a local choice who would be more available to help with your needs?

Trustworthiness. Is the potential surrogate dependable, or do they have a history of shutting down in times of crisis? Do you believe that they will follow your wishes, or will they be unable to set aside their own beliefs and opinions if they differ from yours?

Physical and mental ability. Will your named surrogate be physically able to help you? Are they struggling with their own health issue or advancing years? Are they prone to unpredictable behavior or mental illness that would make them unfit to objectively handle your medical needs?

Tenacity. Any caregiver will tell you that acting as surrogate is not for the faint of heart. A surrogate must be persistent, be the squeaky wheel with medical providers and be unwavering in their desire to help you. And they must be prepared to advocate for you, even in the face of conflict.

Willingness. Is the surrogate going to be ready, willing and reasonably available to help you if a crisis strikes today? While you are thinking about this, you may wish to offer to serve as surrogate for relatives or friends whom you would be able to help if they needed it.

In my law practice, I see clients frozen by indecision because they don’t know if the person they want would want to serve. Offer your helping hands before being asked.

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Don’t worry about hurt feelings

Naming whom you want is more important than sparing feelings: Your future medical life is too important to consider people-pleasing.

Your closest relative (like a spouse or child) flat-out may not be the best choice to be your surrogate. For example, your children may have horrible sibling rivalry that would certainly not end during a medical crisis, and they would butt heads as co-surrogates.

If your best friend is the person you trust who meets all the other factors, then name him or her. If you know one child is responsible and the other is not, then name the responsible child.

It’s far more important to have the person you feel most confident in than the “obvious” or “peacemaking” choice.

Adjust document as circumstances change

As you move through this list of considerations, do not fret if you aren’t 100 percent confident in your first choice. First, your health care surrogate designation can, and should, name alternate surrogates in the event your first choice is unable or unwilling to serve.

Second, you do not need to imagine what your surrogate will be like 10 or 30 years down the road. It’s more important to consider how they are today. You can create a new health care surrogate designation with ease if your wishes or circumstances change.

Make your health care wishes clear

Remember, the surrogate is only as informed as you make them. So, when you appoint your surrogate, talk to them about your medical care, including palliative care, and end-of-life wishes.

If they don’t know what you would want, they should make decisions that they believe are in your best interests.

And although it seems like a no-brainer, make sure they have copies of your designation document. A missing document is just as useless as no document at all.

Inaction may be hazardous to your health

Finally, be ready if you are met with resistance or the question arises: “What happens if I do nothing?” The fact is that not choosing a surrogate designation leaves everything up to chance.

Many states have default surrogate laws that address who could act on an incapacitated person’s behalf, but the default surrogate may not be the person you would want.

Further, a court may be called upon to appoint a guardian for the incapacitated person. Guardianships, or conservatorships, can be extremely expensive and also run the risk of someone you wouldn’t want (or a stranger) making decisions about your medical care.

The stakes are simply too high to leave it up to fate. And if you’re met with total resistance to the conversation, it’s OK. You can always try again to impart to your loved ones how much these matter and why.

So, as you’re preparing for your next family gathering and marshaling your courage to have these difficult but oh-so-important discussions, check out the ample online resources that will guide you to conversation starters about health care surrogates and the free state-by-state forms that you can print and fill out together.

I wish you and yours the very best of luck in creating a care plan and the comfort of knowing that you’ve talked and planned together to weather times of crisis. 

Editor's note: This article, originally published in 2019, has been updated by the author.

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