February 2021

In the field of medicine, a healthcare proxy (commonly referred to as HCP) is a document (legal instrument) with which a patient (primary individual) appoints an agent to legally make healthcare decisions on behalf of the patient when the patient is incapable of making and executing the healthcare decisions stipulated in the proxy.

Once the healthcare proxy is effective, the agent continues making healthcare decisions as long as the primary individual is legally competent to decide. Moreover, in legal-administrative functions, the healthcare proxy is a legal instrument akin to a “springing” healthcare power of attorney.

The proxy must declare the healthcare agent who will gain a durable power attorney. This document also notifies of the authority given from the principal to the agent and states the limitations of this authority.

Those over the age of 18 are allowed to have a healthcare proxy, and these documents are useful in situations that render a person unable to communicate their wishes such as being in a persistent vegetative state, having a form of dementia of an illness that takes away one’s ability to effectively communicate, or being under anesthesia when a decision needs to be made.

Some jurisdictions place limitations on the persons who can act as agents. In any event, the agent should be someone close to and trusted by the primary individual.

In any event, the agent is recommended to be someone close to and trusted by the primary individual. In the absence of a power of attorney, a legal guardian must be appointed.

Legal guidelines

Healthcare proxies are permitted in forty-nine states as well as the District of Columbia.

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 is 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 does not want to receive like dialysis or blood transfusion, 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 donation.
Two adult witnesses must sign the document stating that they have witnessed this agreement and that both parties appear to be sane. 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 healthcare providers, the agent, spouse, and close friends. A copy should also be carried by the primary individual (in wallet or purse).

Powers and limitations

The agent is empowered when a qualified physician determines that the primary individual is unable to make decisions regarding healthcare. The agent may be granted the power to remove or sustain feeding tubes from the primary individual if these tubes are the only things that are keeping the primary individual alive.

The agent’s decision should draw upon the 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.

An individual may have identified end-of-life decisions in a separate document, such as a living will or advanced healthcare directive, in which case it is necessary to examine all of the documents to determine if any supersede the agent’s authority as granted in the healthcare proxy, based on the language of the interrelated documents and governing state law.

An agent will not be legally or financially liable for decisions made on behalf of the primary individual as long as they follow the terms of the healthcare proxy.

Capacity to appoint

There are limited legal foundations to determine the ability of someone to appoint a healthcare proxy. Although physicians are allowed to deliver life-saving treatment in emergent situations, in non-emergencies, it is determined if the patient has the ability to then appoint a healthcare proxy.

It is possible for a patient lacking the ability to make healthcare decisions, to still have the capacity to appoint an agent and have a proxy.

What is a Health Care Proxy?

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