Choosing an Agent For Your Health Care Directives

The most important decision you will confront when executing a medical power of attorney is who to appoint as your agent. Though most people choose to appoint their spouse, relative, or close friend, this is not a requirement. However, the person you appoint should be, above all, someone you can trust completely. Also, you should feel comfortable discussing your wishes with this person. This is not to say that you must choose someone who agrees with your wishes, but only that they must be able to act in your best interest and according to your wishes if anything were to happen to you.

What Is a Medical Power of Attorney?

As you may or may not know, a durable power of attorney for health care vests a person of your choosing (your agent) with the authority to make decisions regarding your medical care and treatment if you are ever unable do so for yourself, whether because of injury, illness, or advanced age.

Important Factors to Consider in Choosing Your Agent

Though there are no hard and fast rules for choosing an agent, and no two people’s situations are identical, there are certainly several things to consider in making your decision:

Are they assertive? You should remember that your agent will be acting during a difficult time, when friends or family members and even medical providers may disagree on what treatment you should or should not receive. As such, your agent must be able to strongly assert your wishes and advocate for your best interests without giving in to others’ opinions. Be sure to choose an agent who can steadfastly protect your wishes, particularly if you foresee possible conflict in this area.

Does My Agent Live Close by? Though you are not required to appoint someone who lives in your home state, your prospective agent’s proximity to you can prove to be a critical issue. If, for example, you one day suffer from a prolonged illness, your agent will need to be nearby for an indefinite period of time, as he or she could be required to make decisions regarding your treatment at any time, and ensure that medical personnel are abiding by your specified wishes.

Will the Person Have Any Financial Power? If you do execute a durable power of attorney for financial purposes and therein name somebody to manage your assets in the event you become incapacitated, you may be wise to appoint the same person as your health care agent if it is feasible and desirable. This may not be true for everyone, and if you feel it would be better to name separate parties, you should ensure that both people are able to get along with one another and act together to protect your wishes and best interests. We have clients that routinely choose one family member to make medical decisions and a different family member to make financial decisions.

Some concerns when picking different agents, is that your financial agent could impede the duties of your medical agent by refusing payment of your medical bills.

A Health Care Provider Should Not be Named as Your Agent

In most cases, you should definitely refrain from appointing a doctor or other medical personnel at the facility where you will likely be treated in the event of incapacity as your medical agent. Many states actually have laws which prevent people from doing so. However, some states do allow you to select such a person if they are related to you, or if you are also employed at the healthcare facility where the person works.

Appointing Multiple Agents

Although legally you are allowed to appoint more than one party as your medical agent, there may be reasons to name only one when executing a power of attorney for health care. This may be true even if you feel there is more than one eligible person. Problems may arise due to the simple passage of time that would make it undesirable to have two people acting together. During the stressful time in which agents would be acting, it may be difficult for two people to get along, agree, or see eye to eye on what is best for you. If this occurs, both agents would become ineffective advocates, and your wishes may not be carried out as you intended them to be.

If there are multiple people who you would feel comfortable appointing, it may be best to speak with them and ultimately allow them to choose amongst themselves who would be the ideal candidate. That way, you can approve their choice and name one or several of the others as an “alternate agent,” which is discussed below.

Specifying an Alternate Agent

You are allowed to appoint an alternate agent who will act in the case that your primary agent is unable to carry out his or her duties for any reason. It is wise to do so, but at the same time, you should be just as thoughtful about who should act as your alternate agent as you are about who your primary agent should be. With that said, you must be certain to name someone who will protect your best interests and effectively carry out your wishes if they need to.

What If You Don’t Name an Agent?

If you fail to appoint a medical agent – either because there is nobody you trust enough to do the job, or some other reason- this is better than naming someone who you do not feel fully comfortable with. In the case that no agent is specified, a court will likely appoint one for you. However, even if you do not know of a suitable agent, you should still execute a living will, which can spell out your wishes regarding medical treatment in the case of incapacity regardless of the absence of an agent. Medical personnel will be obligated to abide by these wishes (provided they are legal and feasible) even without an agent. If you need a living will and medical power of attorney be sure to contact one of our expert Albuquerque estate planning lawyers to schedule a free consultation.