Dementia: Update for the Practitioner

The health-care proxy is a power of attorney only over medical matters; it has nothing to do with financial matters. It is available in some states, and it costs 33 cents; you save the extra $2.50 because you do not need a notary. The health-care proxy has to be signed in front of two witnesses over the age of 18, neither one of whom can be the agent.

If two physicians certify that I do not have the capacity to make medical decisions, the health-care proxy gives the name, address, and telephone number of the agent. You can only name one agent at a time. You can name alternates in serial fashion, like a ladder, but only one agent serves at a time.

New York's health-care proxy was created in 1990 by a governor-appointed commission made up of lawyers, doctors, ethicists, and religious people. It is amazing to me that any lawyers were involved in the process at all: the document is only one page long. It is written in plain English. It is not difficult to understand.

The medical experts wisely placed into the document the limit of one agent serving at a time. Think again of the situation with the four children. When there is a dispute as to the type of treatment that should be followed, the decision can be made by the agent under the health-care proxy. The other three children have no authority. Consent from the agent is exactly the same as consent from the patient, assuming two physicians have certified that the patient cannot make medical decisions on his or her own. It is simple and straightforward.

There is one twist in paragraph two of the New York proxy. Paragraph two says that the agent can make all decisions, with the exception of decisions about artificial nutrition or hydration, unless that authority is specifically given in paragraph two. I alter the form slightly in paragraph two to say, "I have discussed with my Agent my wishes regarding artificial nutrition and hydration, and I authorize my Agent to make decisions on that topic." I have created a form that allows the agent to make any decision, from an ingrown toenail to a hair transplant and everything in-between.


	Limits of the Living Will

After a client has signed the health-care proxy in my office, I ask, "How many health-care providers do you have?" and that is how many copies I make of the document. Copies are acceptable by statute; there is no requirement that the patient give you an original. When a patient goes into the hospital, I tell that person to place 25 copies on the bed stand and hand one to every single health-care worker who comes into the hospital room. I want to make sure that everyone in the facility knows that if the patient cannot make decisions, there is a health-care proxy.

Plan ahead. When I see clients for whom I bring a guardianship, I know that somebody did not plan ahead. Clients should make plans while they still have capacity to avoid the guardianship and use these very simple, inexpensive techniques to stay out of court.

PREVIOUS | NEXT