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Turning 18 is a big deal. It marks the beginning of a person’s adult life—the freedom to make independent choices, to live independently, to vote and even to sign contracts. It also comes with new responsibilities, including the responsibility to make personal medical decisions. Stated another way, an 18-year old’s parents no longer have an automatic right to access their child’s medical records (HIPAA laws) and make health care decisions on their behalf. This change, while appropriate as a person enters adulthood, can become problematic if the adult child becomes incapacitated and unable to make their own healthcare decisions.
A health care proxy can fill this void. It ensures that someone the young adult trusts will have the legal authority to make medical decisions on their behalf, and avoids the confusion and delay that might otherwise arise. It’s a small step with enormous implications for peace of mind and personal autonomy.
A health care proxy is a legal document that is recognized throughout the United States (subject to some variation depending on the state of creation). It may also be known by other names such as a medical power of attorney, power of attorney for healthcare or durable health care power of attorney. As its name suggests, it allows a person to name a “proxy” to make medical decisions for them in the event they become unable to do so.
By whatever name, a health care proxy becomes active only when the individual who created it is deemed incapacitated. The holder of the authority, i.e., the named representative, can be any trusted adult—a parent, spouse, partner, sibling, friend or other chosen individual. Moreover, a health care proxy can name successive or alternate proxies where the primary agent cannot or will not act. It may also contain directives or parameters for decision-making that reflect the creator’s wishes and values.
Importantly, it eliminates legal ambiguity and provides for timely and critical decision-making without resort to state default rules or the necessity of court ordered intervention (e.g., a guardianship action). Statutory default designations will vary from state to state (and in some states do not exist), and may result in a class of designees that have conflicting viewpoints with each other and/or with the incapacitated person. A guardianship petition can take time, involves additional cost and is not a certain outcome. Given a lack of clarity in decision making authority, hospitals may delay care and/or determine the course of action themselves pursuant to their own policies and guidelines.
Young adults are legally independent, but not necessarily prepared for medical emergencies. They are normally unmarried, living and/or working independently, away at college or beginning a career. They are often active and may encounter various high-risk situations, including sports injuries, automobile accidents, mental health crises, drug or alcohol complications, or unforeseen surgical complications.
A health care proxy ensures that their chosen representative is legally able to speak for them and make decisions. It also supports decision-making that aligns with their own beliefs and values. Additionally, it can provide clarity and some measure of comfort for family and friends during a very difficult time.
Creating a health care proxy is generally simple and inexpensive. States often have template forms and directions for creating valid health care proxies. Consulting a licensed attorney can ensure that all legal requirements are followed (which may vary from state to state) and provide greater peace of mind. An attorney may also be helpful if the maker of the proxy is seeking to integrate the health care proxy with other authorities and estate planning documents (e.g., a power of attorney, a will, a HIPAA release or a living will). Finally, it is essential to communicate to the named representative (and successors) the existence of the health care proxy, ensure they are willing and able to serve, and provide them with a copy of the appointment.
As a person becomes a young adult, their lives change in both perceptible and imperceptible ways. It is important to understand their new legal status and how the role of their parents has changed. While no one wants to contemplate a medical emergency requiring difficult decisions, having a health care proxy in place can provide necessary authority and direction should such a situation arise.
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