Trusts and Estates

Considerations When Naming a Health Care Surrogate

What would happen if you got into an accident and couldn't decide what health procedures would make you well? Would you want a personal representative to make those decisions for you? You appoint a surrogate to make the health care decisions on your behalf in the event that you are unable to make the decisions yourself.

All 50 states and the District of Columbia have laws dealing with your ability to make a written directive about health care decisions, including end-of-life decisions. Some states provide for a health care directive in the form of a durable power of attorney for health care decisions. This is also called an advance directive.

Who Should be My Surrogate?

The person you select as your surrogate should be a close friend or relative familiar with your beliefs and wishes about medical treatment. You don't want a surrogate who could have a problem following through on your clearly expressed wishes regarding your health care treatment.

Discuss your medical treatment desires and beliefs thoroughly with the proposed surrogate and make sure the surrogate agrees to comply with your wishes. In addition, you should discuss your health care beliefs and wishes with your medical provider.

What Powers will be Granted to my Surrogate?

The health care surrogate document describes the powers granted to the surrogate. You must discuss with your attorney the types of medical treatment and procedures that you want or don't want. Circumstances that cause the document to become effective are usually provided by law and are listed in the document.

However, you should discuss with your attorney whether those situations are right for you. Also, state your desire regarding the steps need to be taken to confirm you no longer have the ability to make health care decisions for yourself. The document can also grant your stand-in the power to access your medical records and apply for public benefits on your behalf.

Will My Directive Be Honored?

Many states provide suggested forms for the directive, but the form may not be right for every person. However, any departure from the form may cause the document to become invalid.

Unless a state law requires use of the form without changes, a modified directive should be honored by health care providers. If the health care provider refuses to honor the directive, a lawsuit may be the only way to enforce your wishes. Check your health care provider's policy about honoring changed forms and, if necessary, meet with hospital personnel to make sure the directive is honored if it's needed.

You should give copies of the document to your surrogate, your treating physician, family and friends you want involved in your life and retain a copy for your records. If you have a lawyer, be sure to give a copy to that person as well. Keep a list of everyone who is given a copy of the directive, so you can notify them if you revoke or change the form.

Questions for Your Attorney

  • Will a health care directive be valid in another state?
  • How often should I have my health care directive reviewed?
  • What happens if my health care directive is not honored?

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