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Medical
Proxies: Six Steps to Empowering Incapacitated Patients
By David Stern
January
2002
Advances in
medical science enable us to extend lives decades beyond
what was possible a century ago. Yet this progress has a
potentially darker side: It can prolong suffering and draw
out the process of dying beyond what is natural and longer
than many people desire.
The 1970s tragedy of coma victim Karen Ann Quinlan
dramatized the plight of those whose final days are spent
in a haze of heavily medicated pain while their families
suffer emotional anguish. Since then, much has been done
to enhance patient rights and decision-making autonomy.
However, concerns about
legal liability and the inability of patients
incapacitated by illness or injuries to give clear
direction cause many to receive undesired treatment.
Respirators, feeding tubes and other mechanisms are often
unwanted at the end of life, but are used because
physicians have no guidance to the contrary.
Medical proxies, also known as healthcare proxies, advance
directives or medical powers of attorney, were created to
give incapacitated patients control over their treatment.
In Rhode Island there are two types of advanced directives
provided by law: the Durable Power of Attorney and the
rights of the Terminally Ill Act (sometimes called a
"living will") The Durable Power of Attorney is a legal
document, which is valid in all 50 states, although often
called a proxy. It designates an agent or surrogate to act
in an incapacitated patient's behalf and to help make
treatment decisions. A medical/healthcare proxy differs
from a living will, which is used only in end-of-life
decisions, does not appoint an agent and is not recognized
in many states.
Statistically, on a per capita basis, Rhode Island has the
nation's second-highest percentage of elderly residents.
While nationally 58% of nursing home residents have signed
a health care proxy, in Rhode Island, that number reaches
75%.
Although details of the laws governing medical proxies
vary from state to state, Rhode Island has provided (R.I.
Gen. Laws s 23-4.10-1 et. seq.) that an agent may act only
after the attending physician certifies that the patient
is unable to make or communicate decisions. The agent may
then make any decision that the patient would have, such
as consent to or refusal of medical treatment. The patient
can, in advance, issue specific instructions and stipulate
exceptions or limits to the agent's authority.
If you want to ensure that your treatment wishes are
followed in the event of incapacity, you should follow
these six steps to create a medical proxy:
-
Identify an agent.
You need to identify an agent, and preferably an
alternate agent as well. Your agent should be someone
you trust who is willing and able to make crucial
decisions on your behalf.
-
Determine your
instructions. You should examine treatment
alternatives and discuss what treatment you want with
your physician, your attorney and family members. You
also should make sure that your agent fully understands
your instructions and is prepared to carry them out.
-
Draft your proxy.
You should draft your medical proxy, either by yourself
or in consultation with your physician or attorney.
Sample forms are available through lawyers, many
hospitals and Web sites devoted to legal and healthcare
matters. At a minimum, the medical proxy must identify
you and your agent and include contact information;
state your intent that your agent have authority to make
healthcare decisions in your behalf; state what
limitations, if any, are imposed on the agent's
authority; and state that the agent's authority begins
only if you are unable to make healthcare decisions.
-
Have your proxy
witnessed. Once you are comfortable with your
instructions, you should sign your medical proxy and
have it witnessed by two individuals who are neither
your agents nor caregivers nor relatives by blood,
marriage or adoption. Since a medical proxy is a legal
document, every effort should be made to ensure that
your proxy complies with the specific requirements of
the state in which you live.
-
Make sure your proxy
is accessible. The primary limitation of medical
proxies is that physicians sometimes neither know that
their patients have proxies nor have a way of finding
out that they do. 35% of the families of Rhode Island
nursing home residents who died with an advance
directive reported two or more communication problems
with medical providers. You
should give copies of your medical proxy to your
physician and designated agent(s). Your spouse, partner
or family also should have a copy. Ideally, hospitals
should be able to ascertain whether you have a proxy and
whom to contact in the event of an emergency. Proxy
information may now be listed online so that it is
available to medical providers.
-
Review your proxy
regularly. You should review your medical proxy
regularly, and update it to reflect any changes in your
situation. For example, your proxy should include any
changes in your agent's contact information or in your
treatment instructions. It's best to review your proxy
in connection with some regularly scheduled event, such
as an annual consultation with your physician.
Leading professional
groups, such as the American Medical Association and the
American Bar Association, as well as advocates such as the
American Association of Retired Persons, recognize the
value of medical proxies as a solution to a patient's
inability to make vital decisions.
Without an executed medical proxy, spouses, partners or
other trusted loved ones may not be able to participate in
medical treatment decisions, and your healthcare decisions
may be made by people lacking knowledge of your wishes.
These simple steps will ensure that you receive only the
treatment you want, sparing unwanted and costly treatment.
November, 2001
1 "Dying with Dignity" The Rhode
Island End of Life Conference Report at 13.
2 Ibid at 3
3 Ibid at 4 |
