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Health Care Proxies - What You Should Know About Desginating a Health Care Agent
April 17, 2009

Over 100 Million American adults have not designated an agent to make medical decisions or documented the type of care they desire. Although it can be a difficult issue to tackle, it is important for all adults to think about who would make certain medical decisions for them in the event they were too sick to convey their wishes personally. In some cases, the individuals assume that their spouses or children can step in and take over the medical decision-making. However, New York is one of a few states that do not automatically authorize families to make critical medical decisions for loved ones who lack the capacity to decide for themselves. Unfortunately, this fact is often not discovered until it is too late. As a result of the failure to specifically designate an agent to carry out your wishes, your family members and doctors could face bitter, lengthy legal battles in an effort to determine what treatments you would want.

There are also individuals who assume that their doctor will know what care and treatment is necessary. However, doctors cannot make any determination regarding the quality of life under the existing New York State Public Health Law. Under the terms of the Hippocratic oath, doctors are more likely to intervene to sustain life in most cases, even where there is a known terminal illness. Therefore, if you wish to give someone the ability to refuse treatment on your behalf (such as ventilator assistance, feeding tubes or cardio-pulmonary resuscitation), you must grant the authority to refuse treatment by executing documents known as a “Health Care Proxy” and “Living Will”.

A Health Care Proxy is a document which allows you to designate an agent to make health care decisions in the event you are unable to do so. A Living Will supplements the Health Care Proxy by allowing you to document your wishes concerning treatment under certain instances, such as a terminal illness, or in the event you are in a persistive vegetative state where there is no reasonable likelihood of recovery.

Appointing a health care agent is a good idea even if you are not terminally ill. A health care agent can act on your behalf should you ever become temporarily impaired. For instance, if you are unconscious as a result of a general anesthesia or have become comatose because of an accident, your agent would be able to make any necessary health care decisions on your behalf and could also arrange for the payment of your health care costs.

You should be commended if you have had the foresight to execute a Health Care Proxy. However, be advised that privacy restrictions have recently been enacted which could have a serious impact on your designation. On April 13, 2003, the Health Insurance Portability and Accountability Act (commonly referred to as “HIPAA”) took effect. These HIPAA regulations apply to virtually every physician, dentist, nurse, and health care provider in the nation. The intention of the HIPAA legislation was to standardize the transmission of health care information and require providers to take “reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure or request.”

In other words, if your Health Care Proxy was executed prior to 2003 and disclosure of protected health information is necessary for your treatment, your agent could be denied access to your health or medical information, which would then have an impact upon your agent’s ability to provide care for you. Therefore, it is prudent that you complete a HIPAA authorization or execute an updated Health Care Proxy, which should include the appropriate HIPAA language to authorize your agent to make informed medical decisions as a result of having full access to protected health information.

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