Health care proxy
Encyclopedia
A Health Care Proxy is an instrument (or document) that allows a patient to appoint an agent to make health care decisions in the event that the primary individual is incapable of executing such decisions. Once the document is drafted, the primary individual continues to be allowed to make health care decisions as long as they are still competent
to do so. Depending on the legal jurisdiction, health care proxies may or may not be mandatory. Regardless, they allow a patient's wishes to be followed even when he/she is incapable of communicating them. In many jurisdictions, a health care proxy is closely related to a "springing" health care power of attorney; with many practitioners using these two terms interchangeably.
determines that the primary individual is unable to make decisions regarding health care
. The agent has the power to remove or sustain feeding tube
s from the primary individual if these tubes are the only things that are keeping the primary individual alive. The agent's decision stems from knowledge of the patient's desire in this matter. If the primary individual made his or her wishes clear on the proxy form, then they must be followed despite any possible objections from the agent. Beyond this matter, if there are no limitations on the health care proxy form, the agent can make most other decisions in accordance with what the primary individual would have wanted. An agent will not be legally or financially liable for decisions made on behalf of the primary individual as long as they take into account the primary individual's wishes and beliefs.
Health care forms may differ in structure from state to state and pre-made forms are not compulsory as long as certain guidelines are met. The common guidelines include:
case is a famous modern-day example. Doctors tried to treat Schiavo for more than ten years and concluded that she was in a persistent vegetative state
. Her husband, who stood to benefit financially from not having to divorce Schiavo and who wanted to re-marry, elected to have her feeding tube removed, but her parents objected. This resulted in a lengthy court battle that raised many political, moral, and medical issues. The whole controversy might have been avoided if Schiavo had assigned either her parents or her husband as her health care proxy. As a result, some commentators have argued that health care proxies should be made mandatory.
and Wales
, an independent mental health capacity advocate may be appointed under the Mental Capacity Act 2005
; the provisions made in the same Act for a lasting power of attorney
may also provide a satisfactory basis for providing care via an attorney
, who does not require to be professionally qualified. Different arrangements apply elsewhere in the UK.
Competence (law)
In American law, competence concerns the mental capacity of an individual to participate in legal proceedings. Defendants that do not possess sufficient "competence" are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testify...
to do so. Depending on the legal jurisdiction, health care proxies may or may not be mandatory. Regardless, they allow a patient's wishes to be followed even when he/she is incapable of communicating them. In many jurisdictions, a health care proxy is closely related to a "springing" health care power of attorney; with many practitioners using these two terms interchangeably.
Criteria for being an agent
Some jurisdictions place limitations on the persons who can act as agents. (Some forbid the appointment of treating physicians as the health care proxy.) In any event the agent should be someone close to and trusted by the primary individual.Powers and limitations of an agent
The agent is empowered when a qualified physicianPhysician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
determines that the primary individual is unable to make decisions regarding health care
Health care
Health care is the diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans. Health care is delivered by practitioners in medicine, chiropractic, dentistry, nursing, pharmacy, allied health, and other care providers...
. The agent has the power to remove or sustain feeding tube
Feeding tube
A feeding tube is a medical device used to provide nutrition to patients who cannot obtain nutrition by swallowing. The state of being fed by a feeding tube is called gavage, enteral feeding or tube feeding...
s from the primary individual if these tubes are the only things that are keeping the primary individual alive. The agent's decision stems from knowledge of the patient's desire in this matter. If the primary individual made his or her wishes clear on the proxy form, then they must be followed despite any possible objections from the agent. Beyond this matter, if there are no limitations on the health care proxy form, the agent can make most other decisions in accordance with what the primary individual would have wanted. An agent will not be legally or financially liable for decisions made on behalf of the primary individual as long as they take into account the primary individual's wishes and beliefs.
Structure of typical health care proxy form in USA
Health care proxies are permitted in forty-nine states as well as the District of Columbia.Health care forms may differ in structure from state to state and pre-made forms are not compulsory as long as certain guidelines are met. The common guidelines include:
- Name and address of the agent.
- Name and address of an alternate agent.
- Duration of the proxy – not indicating a duration means it's valid unless stated otherwise.
- Special instructions – these can broaden or limit the powers of the agent. If the patient doesn't want to be on feeding tubes no matter what, this can be stated here. If there are certain treatments that the patient doesn't want to receive like dialysisDialysisIn medicine, dialysis is a process for removing waste and excess water from the blood, and is primarily used to provide an artificial replacement for lost kidney function in people with renal failure...
or blood transfusionBlood transfusionBlood transfusion is the process of receiving blood products into one's circulation intravenously. Transfusions are used in a variety of medical conditions to replace lost components of the blood...
, then they must be indicated. However, if the patient wants to give the agent more flexibility with some or no restriction, this must be written. - Name, date and signature of the primary individual.
- Instructions on tissue or organ donationOrgan donationOrgan donation is the donation of biological tissue or an organ of the human body, from a living or dead person to a living recipient in need of a transplantation. Transplantable organs and tissues are removed in a surgical procedure following a determination, based on the donor's medical and...
. - Two adult witnesses must sign the document stating that they have witnessed this agreement and that both parties appear to be saneSanitySanity refers to the soundness, rationality and healthiness of the human mind, as opposed to insanity. A person is sane if they are rational...
. The witnesses must be 18 years or older. The agent and primary individual do not qualify as witnesses. - Presence of a lawyer - such a person may help in drafting a document tailored to the needs of the primary individual.
- Once signed, copies of the form must be given to health care providers, the agent, spouse, and close friends. A copy should also be carried by the primary individual (in wallet or purse).
Contemporary importance of health care proxies
Health care proxies have become increasingly important today due to conflicts among relatives of the primary individual. The Terri SchiavoTerri Schiavo
The Terri Schiavo case was a legal battle in the United States between the legal guardians and the parents of Teresa Marie "Terri" Schiavo that lasted from 1998 to 2005...
case is a famous modern-day example. Doctors tried to treat Schiavo for more than ten years and concluded that she was in a persistent vegetative state
Persistent vegetative state
A persistent vegetative state is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. It is a diagnosis of some uncertainty in that it deals with a syndrome. After four weeks in a vegetative state , the patient is...
. Her husband, who stood to benefit financially from not having to divorce Schiavo and who wanted to re-marry, elected to have her feeding tube removed, but her parents objected. This resulted in a lengthy court battle that raised many political, moral, and medical issues. The whole controversy might have been avoided if Schiavo had assigned either her parents or her husband as her health care proxy. As a result, some commentators have argued that health care proxies should be made mandatory.
UK legal situation
In EnglandEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
, an independent mental health capacity advocate may be appointed under the Mental Capacity Act 2005
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
; the provisions made in the same Act for a lasting power of attorney
Lasting Power of Attorney
Lasting powers of attorney in England and Wales were created under the Mental Capacity Act 2005 of which copies are available online, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney which were narrower in scope...
may also provide a satisfactory basis for providing care via an attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
, who does not require to be professionally qualified. Different arrangements apply elsewhere in the UK.
See also
- Power of attorneyPower of attorneyA power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
- Advance health care directive
- Living willLiving willAn advance health care directive, also known as living will, personal directive, advance directive, or advance decision, are instructions given by individuals specifying what actions should be taken for their health in the event that they are no longer able to make decisions due to illness or...
- Uniform Rights of the Terminally Ill ActUniform Rights of the Terminally Ill ActThe Uniform Rights of the Terminally Ill Act , has been recommended as a Uniform Act in the United States, and subsequently been passed by many states. The law allows a person to declare a living will specifying that, if the situation arises, he or she does not wish to be kept alive through life...
- Do Not ResuscitateDo not resuscitateIn medicine, a "do not resuscitate" or "DNR" is a legal order written either in the hospital or on a legal form to respect the wishes of a patient to not undergo CPR or advanced cardiac life support if their heart were to stop or they were to stop breathing...
- Patient refusal of nutrition and hydration
- Estate planningEstate planningEstate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses...
- Ulysses pactUlysses pactA Ulysses pact or Ulysses contract is a freely made decision that is designed and intended to bind oneself in the future. The term is used in medicine, especially in reference to advance directives , where there is some controversy over whether a decision made by a person in one state of health...