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A health care proxy is a legal document used in the United States that allows an agent to make health care decisions in the event that the primary individual is incapable of executing such decisions. [1] Even when this documents is drafted, the agent cannot make a health care decision as long as the primary individual has the mental ability to do so. Health care proxies are permitted in forty-nine states as well as the District of Columbia.[2] Health care proxies are by no means mandatory; rather they allow the patient's wishes to be followed even when he/she is incapable of communicating it.

Criteria for Being an Agent

In general, anyone can be the primary individual's agent as long as the agent is above 18 years of age. One major exception involves the appointment of treating doctors. "Thirty nine states have enacted laws that forbid the appointment of treating physicians as healthcare proxies"[2]. If the primary individual wants a medical doctor to be the agent, the doctor cannot be directly involved in treating the patient. This limitation has created some controversy, as potential conflicts of interest between the patient's and doctor's choices are a major concern. Advocates of this idea believe that the patient's personal values may differ from the doctor's professional values and when acting as an agent, the doctor may apply professional values instead of following the patient's wishes. Those that oppose this idea believe that not being able to choose a doctor limits their freedom of choice.

Powers and Limitations of an Agent

The agent is empowered when a qualified physician determines that the primary individual is unable to make decisions regarding health care. The agent has 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 stems from 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. Beyond this matter, if there are no limitations on the health care proxy form, the agent can make most other decisions in accordance to what the primary individual would have wanted. An agent will not be legally or financially liable for decisions made on behalf of the primary individual as long as they take into account the primary individual's wishes and beliefs.

Structure of Health Care Proxy Form

Health care forms may differ in structure from state to state and pre-made forms are not compulsory as long as certain guidelines are met. Some of the universal information required for health care proxies include:

  • Name and address of the agent *
  • Name and address of alternate agent - if the primary individual would like to include one
  • Duration of the proxy – not indicating a duration means it is valid until stated otherwise
  • Special instructions – these can broaden or limit the powers of the agent. If the patient does not want to be on feeding tubes no matter what, they can state that. However, if they want to give their agent more flexibility and he/she knows the patient's wishes, the patient can state something like the following: "I have discussed terminal illness with my agent and the agent knows my wishes and can act accordingly." This gives the agent broader power should the primary individual be terminally ill. Other special instructions may include treatments that the primary individual would not want to receive like blood transfusions or dialysis.*
  • Name, date and signature of the principle.*
  • Instructions on organ or tissue donation.
  • Two adult witnesses must sign the document stating that they have witnessed this agreement and that both parties appear to be in good mental condition. 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 should be given to health care providers, the agent, spouse, and close friends. A copy should also be carried by the primary individual (in wallet or purse)*

(*)The starred guidelines are mandatory for the health care proxy to be in effect

Contemporary Importance of Health Care Proxies

Health care proxies have become increasingly important today due to conflicts among relatives of the primary individual. The Terri Schiavo case is a famous modern-day example. Doctors had tried to treat Terri for more than ten years and had concluded that she was in an indefinite vegetative state. Her husband wanted to remove her feeding tube, but her parents opposed it. This resulted in a lengthy court battle that raised many political, moral, and medical issues. The whole controversy could have been avoided if Terri had assigned either her parents or her husband as her health care proxy.


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