Submitted by admin on Fri, 08/15/2008 - 09:45
It is unfortunately true that we often get what we pay for. If you download your Health Care Proxy from the internet, get it from a book, or from an attorney who does not adequately explain what you need to know about advance directives, you may end up with an ineffective or unenforceable Proxy. The following is our list of the ten things you must remember to make your advance directives as effective as possible:
1. Executing a Living Will is not enough. Although Living Wills are useful documents, they are not statutorily recognized in Massachusetts, and doctors and hospitals are not required to adhere to the wishes expressed in your Living Will. You need to execute a Health Care Proxy that names an Agent who will enforce your wishes.
2. In addition to identifying the Principal (you) and your Agent, your Proxy must state that you intend to grant to your Agent the authority to make health care decisions on your behalf; describe any limitations you wish to place on your Agent; and indicate that your Agent's authority becomes effective only if you subsequently lose capacity to make medical decisions. (Also, it is wise to include the addresses and telephone numbers of your Agent and Alternate, so they can be located quickly).
3. Your Proxy must be signed by you or at your direction in the presence of two adult witnesses. The witnesses must then sign and affirm that you appear to be at least eighteen, of sound mind, and under no constraint or undue influence. (It's a good idea to follow these rules if you execute a separate Living Will.)
4. The witnesses cannot be named as an Agent or Alternate Agent. And an operator, administrator, or employee of a medical facility where you are, or may be, a resident or patient cannot be your Agent, unless she is also related to you by blood, marriage, or adoption.
5. Do not hide your Proxy and Living Will in a safe. Execute five or six originals, one for your primary care physician (with oral and written instructions to place the documents in your medical records), one for your medical records at the hospital you are likely to end up at in an emergency, one for your Agent and one for your Alternate, one for your own records, and a copy for your lawyer's safe.
6. If you spend a lot of time in another state (winters in Florida, for example) you should consult an attorney in the second state to ensure that your Proxy will also be recognized there.
7. If your Agent is your spouse, and you divorce or are legally separated, your entire Health Care Proxy is revoked. In other words, your Alternate Agent cannot step in and take the place of your spouse. In this case—or if you revoke your Proxy orally or by drafting a substitute—you should collect your old documents, destroy them, and distribute your new Proxy.
8. Select your Agent and Alternate carefully. Make sure they understand your wishes and are willing to do all they can to ensure they are honored. Communication is vital.
9. Express your wishes as clearly as possible in your Proxy and Living Will. Clarity and brevity will help your Agent, family, and doctor understand your wishes.
10. Communicate, communicate, and communicate.
a. Talk to your family about the wishes you have expressed in your Proxy and Living Will and tell them who you have selected as your Agent and Alternate. Surprise, hard feelings, or controversy around your hospital bed may create an unpleasant situation and could result in your wishes not being honored.
b. Talk to your doctor about your Proxy and Living Will. Make sure she, and the facility at which she enjoys staff privileges, are willing to honor your wishes.
For more information or to post a question, visit our Elder Law Discussion Forum.