People make many mistakes when it comes to estate planning, but one of the most egregious ones is failing to account for medical decision-making. We can’t predict when we will no longer have the capacity to make decisions for ourselves about our health care, which is why it is so important to have a plan in place. Federal law protects each patient’s right to make decisions related to care and the right to create advance directives to guide that care. From an estate planning perspective, this involves appointing a healthcare “proxy”, and ideally a backup person, who can make decisions on your behalf once you are no longer able to do so. Of course, choosing this person comes with its own difficulties.
Deciding on a Person to Represent Your Wishes
The first thing to know about choosing a healthcare proxy is that you must follow certain rules. Your healthcare proxy needs to be at least 18 years of age—19 in some states. A member of your current healthcare team cannot function as a proxy, which means that you cannot choose your doctor to make these decisions even if that seems like a logical answer. Also, if you live in a healthcare facility, a member of the staff cannot serve as a healthcare proxy unless that person is a relative. Outside of these rules, you can appoint anyone. Of course, you should choose someone you trust to honor your wishes.
Often, people choose a family member as a proxy, especially if that person has some basic medical knowledge. However, choosing a family member is not necessary, especially if you are concerned that being emotionally involved might cause family members to make decisions that are not necessarily in line with your wishes. The person you choose may need to make quick decisions related to your medical care. While the proxy does not need to have medical knowledge, they should have a good understanding of your values and your wishes so that these quick decisions can be made. Think about who could represent your values and be comfortable speaking on your behalf, even if the decisions they will need to make are very difficult.
Figuring out the Decisions You Need to Make
Anticipating the type of medical care that you might need in the future and thus the decisions you need to make now can be nearly impossible. A good place to start is with your primary care provider. A physician can help you explore the topics that may be most relevant to you in the future and think critically about all the options before you make a final decision. In addition, physicians can introduce you to the tools available in your state to explore options and record wishes. Having these discussions is important—your physician can be an advocate for you when you get sick and create a record of your values.
Depending on how extensive your conversations are with your doctor, you may need to break the conversation with your proxy into multiple sessions. Ideally, you will cover all the topics discussed with your proxy so that they understand what you would want. However, filing formal paperwork can take some of the guesswork out of the decision-making process and help with answering questions. Therefore, it can be very helpful to have advance directives on file. The important thing is having these conversations with the people around you so that everyone has a basic understanding of what you would want. These conversations are difficult to have but extremely important when it comes to honoring your wishes.
Keeping Your Directives Consistent with Your Wishes
While not having advance directives or a healthcare proxy is a major estate planning mistake, so is failing to update this information. Just as you would update the rest of your estate plan as your assets change, you need to revisit your advance directives and adjust them as your values change. The things you want today could change a year from now, and they will most definitely shift as you grow older. Furthermore, new diagnoses or medical breakthroughs or procedures could change how you think about your health. Most likely, you will have these conversations with your providers. In those circumstances, it is important to make necessary changes to these documents.
You also need to discuss your changing values and opinions with your healthcare proxy, and one or more of your loved ones. If your healthcare proxy becomes incapacitated, you will need to think about another person to make decisions on your behalf. Should this happen, be sure to update the paperwork to reflect this. Of course, this means filling in another person on your wishes. These steps are imperative for ensuring your wishes are honored.