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Looking After Yourself

Who Will Make Your Healthcare Decisions If You Are Incapacitated?

January 1999

Probably no area of healthcare has more pitfalls than the choice of medical care that will be given to someone who is no longer able to express his or her own preferences. Well-intentioned friends and relatives can disagree -- often intensely -- about what is right, or what care should be provided and what the person would want done or not done. The only way to ensure that your wishes are followed is to make and express your decisions now about what you want done if there comes a time when you cannot make your own decisions.

Healthcare Proxies

The healthcare proxy law allows you to appoint someone you trust -- a close friend or family member, for example -- to make healthcare decisions. The agent's powers begin only when a doctor determines that you are unable to make those decisions. You may also name an alternate agent, in case the primary agent is unwilling or unable to act.

Appointing a healthcare agent is an effective way to control your medical treatment by making sure that someone can make decisions about treatment on your behalf if you are unable to. Choosing one person to make treatment decisions avoids conflicts or confusion about who should make the decisions.

A healthcare proxy covers all medical decisions that you could make while competent, from routine treatment to life-sustaining treatment. It is important to talk to your medical provider and others in advance about the treatment decisions that a healthcare agent might have to make.

You can write instructions on the proxy form or in a living will, and your agent must make healthcare decisions that are consistent with your wishes, or, if your wishes are not known, according to your best interests. The agent can agree that you should receive treatment, choose among different treatments, and decide that treatments should not be provided. It is therefore important to talk to your healthcare agent about the kind of medical treatments you would or wouldn't want. For example, artificial nutrition and hydration (nourishment and water provided by feeding tubes) are used in many circumstances, and are often used to sustain the lives of people in permanent coma. If your agent is not aware of your wishes about artificial nutrition and hydration, she or he will not be able to make decisions about these measures.

All healthcare professionals, including home care providers, must honor the healthcare proxy and must abide by the healthcare decisions made. Your agent has the right to receive medical information necessary in order to make informed decisions about your healthcare.

A competent adult may revoke his or her healthcare proxy. If you choose your spouse as your healthcare agent and then get divorced or legally separated, your spouse's appointment as healthcare agent will be automatically canceled.

A healthcare proxy must be signed in front of two witnesses, neither of whom is named as the healthcare agent. It does not have to be done with the aid of a lawyer. After the proxy form is signed, a copy should be given to your agent, your alternate if there is one, your doctor, and any other people that you think may need to have the information.

Medical Directives/Living Wills

A medical directive, also known as a living will, is a way of giving written instructions about what kind of medical care you want to receive in the future if there comes a time when you cannot make decisions for yourself. In a medical directive, you can state which treatments you want or don't want, such as artificial medical treatment or nutrition or hydration, if you become terminally ill or are in a persistent vegetative state and lose your decision-making capacity. If you later become able to make decisions for yourself, the medical directive is no longer in effect.

A living will is very helpful if you want to give your healthcare agent written directions or if you have no trustworthy person to appoint as an agent.

There is no New York law that establishes the validity of living wills, but New York's highest court has said that living wills are enforceable and must be followed because they are clear and convincing" evidence of the patient's wishes.

A living will, like a healthcare proxy, can be revoked by a competent adult.

Do Not Resuscitate Orders

A Do Not Resuscitate order, called a "DNR," states that you do not want stopped breathing or heartbeat restarted. In the absence of a DNR, anyone admitted to a hospital is presumed to consent to cardiopulmonary resuscitation. A DNR can be created in writing, orally, or by a surrogate decision-maker if your doctor determines that you are mentally incapable of giving consent. A surrogate will have the right to medical information and medical records.

An adult patient or surrogate, or the parent or legal guardian of a minor patient, may revoke a DNR.

Powers of Attorney

There are steps that you can take to make sure your business affairs are handled if you become physically or mentally unable to do so yourself.

By signing a power of attorney, you give another person -- your agent -- the power to act on your behalf in managing your assets and affairs. The agent's powers can be extremely broad and can be very useful if you are disabled and want someone else to manage your business affairs now, or if you become incapacitated in the future. The power of attorney document does not authorize medical or healthcare decision making.

As with the other documents described above, you must be competent at the time you sign a power of attorney.

The powers conferred in a power of attorney can be very broad, and it is very important to choose a trustworthy person to carry out your wishes. You may be giving your agent access to your bank account, the authority to sell your house, or the power to conduct many other important matters. It is extremely important to name someone who will not mismanage your affairs.

A power of attorney can name one or more agents who can be authorized to act either jointly" (to make all decisions together) or "severally" (alone, without the signature of the other agent or agents).

A power of attorney does not automatically stay in effect if you become incapacitated. If it contains a specific provision stating that it stays in effect if you become incapacitated, it is called a "durable" power of attorney. A durable power of attorney can be very useful because it remains effective if you are incapacitated and therefore allows your agent to continue to manage your affairs without having to go to court to initiate a guardianship proceeding. You must specifically state that the power of attorney is durable in order for the power to stay in effect if you become incompetent at a later time.

The standard power of attorney form allows you to specify the exact powers that are given to the agent.

A power of attorney must be signed in front of a notary public.

A durable power of attorney is no longer effective upon death, revocation, or court order.

Cynthia Schneider is HIV Project Director at South Brooklyn Legal Services.

Back to the January 1999 Issue of Body Positive Magazine

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This article was provided by Body Positive. It is a part of the publication Body Positive.
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