One of the most important parts of creating a health care directive is naming an agent. It’s where you name the person who will work with your doctors to direct your health care and make treatment decisions for you if you are unable to do so. This person is usually called your “health care agent,” though some states use a term such as “representative,” “proxy,” or “surrogate.”
We strongly recommend that you appoint a health care agent—and at least one alternate—if you know someone you trust enough to take the job. The chances that your health care wishes will be enforced increase greatly if you name someone to supervise your care and speak for you if necessary.
Also, because life is unpredictable, there is no way your health care instructions can cover every possible health-related situation that might arise. Rapidly developing technology and new medical treatments underscore the need for flexible decision making. The best approach is to choose a trusted person who fully understands your feelings, beliefs, and wishes.
If you absolutely cannot think of anyone you trust to oversee your medical care, choose not to name an agent. It is better not to name anyone than to name someone who is not likely to strongly assert your wishes.
It’s still a good idea to put your wishes for final health care in writing. Medical personnel are legally bound to follow your written wishes—or to find someone who will. If you do not name a health care agent, make an extra effort to discuss your wishes for medical care with a doctor or patient representative likely to be involved in providing that care.
If you become unable to direct your own health care, your agent will:
Your health care power of attorney can give your agent very broad authority to direct your medical care. Or you can fine-tune your document by giving specific grants of authority.
To carry out your wishes and make decisions for you, your agent will almost always be allowed to:
This should allow your agent to do everything needed to make sure your health care wishes are carried out—and if they are not, to get you transferred to another facility or to the care of another doctor who will enforce them.
You may be concerned that by naming a health care agent, you are giving up control of your own medical treatment—but you needn’t worry. Your agent is legally required to follow your known wishes and to act in your best interest. If you leave written health care instructions, your agent is required to follow them, as are your doctors. On the other hand, if you want to leave certain treatment decisions entirely in the hands of your agent, you may do so.
The decisions your agent makes for you must always agree with what you direct in your health care documents and any other wishes you make known to him or her. If a situation arises in which your agent does not know your specific wishes, your agent must make the decision that he or she believes you would make if you were capable of doing so.
To ensure you get the care you want, one of the most important things to do is talk with your agent (and other loved ones) about your wishes.
You may wonder what happens if your health care agent lets you down. If someone goes to court and proves that your agent is harming you by acting in ways that you would not want, a court could revoke your agent’s authority. In this case, the first person to take over would be an alternate agent you’ve named in your power of attorney for health care. If you haven’t named an alternate or if your alternate is not available, the court will appoint a guardian or conservator to make your health and personal care decisions.
The person you name as your health care agent should be someone you trust and someone with whom you feel confident discussing your wishes. Choose someone who respects your right to get the kind of medical care you want, even if he or she doesn’t completely agree with your wishes.
You can choose your spouse or partner, a relative, or a close friend. Keep in mind that your agent may have to assert your wishes in the face of medical personnel and family members who may be driven by their own beliefs and interests, rather than yours. If you foresee the possibility of conflict in enforcing your wishes, be sure to choose someone who is strong-willed and assertive.
While you need not name someone who lives in the same state as you do, proximity is one factor to consider. If you have a protracted illness, the person you name may be called upon to spend weeks or months near your bedside, making sure health care providers abide by your wishes for treatment. Finally, if you have made—or are planning to make—a durable power of attorney for finances, you should think strongly about naming the same person to oversee both your finances and your health care. If you decide not to name the same person— perhaps because one has a much better head for business and the other is likely to be better at your bedside—keep in mind that your health care agent and your agent for finances may have to work very closely at times. (For example, your agent for finances will be responsible for paying your medical and insurance bills at your health care agent’s direction.)
A number of states have rules about who can serve as your agent. Attending physicians and other health care providers are commonly prohibited from serving. Some states presume that the motivations of such people may be clouded by self-interest. For example, a doctor may be motivated to provide every medical procedure available—to try every heroic or experimental treatment—even if that goes against a patient’s wishes. On the other side, treatments may sometimes be withheld because of concerns about time or cost. Before you select an agent, learn the specifics of your state’s agent requirements and restrictions before you select an agent.
If you are making a Nolo form, you'll find your state's restrictions on the screen where you name your agent.
You may name one or two alternate agents. Your first alternate will serve only if your first choice becomes unavailable. Your second alternate will step in only if your primary agent and first alternate are unable or unwilling to act or cannot quickly be located. Use the same principles to choose your alternates as you did when making your first pick: trustworthiness, dependability, assertiveness, and availability. Do not choose as an alternate someone who is disqualified by state law from serving in your state.
Your state may allow you to name more than one person at a time to serve as your agent. We believe it’s unwise to name two people to serve together, even if you know two people who are willing to take the job. There may be problems, brought on by passing time and human nature, with naming coagents. In the critical time during which your representatives will be overseeing your wishes, they could disagree or suffer a change of heart, rendering them ineffective as lobbyists on your behalf while they argue with each other. If you know of two people you would like to name as your agents, choose one to serve first and name the other as your alternate.