Thomas H. Sullivan

Attorney at Law



American Heart Month: Who Should Be My Medical Agent?

Posted on: February 5th, 2020
February has been celebrated as American Heart Month since 1963 in an effort to urge Americans to join the fight against heart disease, which is the leading cause of death for both men and women. It is also a great opportunity to consider who is the best person to act as your medical agent if you are stricken by a heart attack (or develop any other ailment) and are unable to make your own decisions about your health care or can’t communicate your wishes.

What Is a Medical Agent?
Depending upon the state in which you live, a medical agent could also be known as an agent under an advance healthcare directive (also called a living will), an agent under a medical or healthcare power of attorney, a health care surrogate, a health care proxy, a medical proxy, or a variety of other names. Regardless of the title used in your state, the bottom line is that your medical agent is a person you authorize to make decisions about your medical care if you are too ill to make them yourself or are otherwise unable to communicate your wishes. It is an important role, and the person you choose will be authorized to make critical health care decisions, including whether to consent to or refuse medical treatment and which health care providers or hospitals to use for your care. In addition, your medical agent will have access to your private information. As a result, it is crucial to think carefully about who you choose to fill this role. Many people simply assume that their spouse or their oldest child should take on this role, but they are not always the best suited.

Factors to Consider in Choosing Your Medical Agent
  1. Emotional fitness for the job. People handle stress differently, and not everyone is able to set aside their emotions and make level-headed decisions when someone they love is suffering. In addition, some people are simply not assertive enough to act as a strong advocate in the face of differing opinions of other family members or even health care providers who suggest a treatment plan you have informed your medical agent you do not want. You should choose someone who is able to think rationally in emotionally difficult circumstances, even if that means you must look outside of your family to find the best person for the job.
  2. Geographic proximity. The person you choose to act as your medical agent should optimally be someone who lives close by and is able to act on your behalf very quickly in the event of a medical emergency or if you need your advocate to serve in that role for an extended time period.
  3. Willingness/ability to serve. Acting as a medical agent can be a time-consuming and emotionally draining job. Make sure that the person you choose is willing and able to set aside the time necessary to serve as your patient advocate. Don’t just assume the person you want to be your medical agent is willing: Be proactive and ask if he or she is willing to take on that role. Keep in mind that if you are elderly, you may want to avoid naming a friend or family member who also is older, as there is a greater chance that they will experience mental or physical decline at the same time as you, which could impede their ability to serve as your advocate when the time comes.
  4. Ability to make decisions in accordance with your wishes. Your medical agent has a duty to make decisions on your behalf that you would have made to the extent that he or she is aware of your wishes. This is the case even if your medical agent disagrees with your choices. As a result, your medical agent needs to be someone who is willing to set aside his or her own opinions and wishes to carry out yours. It may be prudent to appoint someone who has values and religious beliefs that are similar to yours to reduce the instances in which your agent’s opinions differ significantly from yours. Do not choose anyone that you do not trust to carry out your wishes.
 
People You Should Not Choose
Many states have laws prohibiting certain people from acting as your medical agent, even if they are otherwise well-qualified to act in that role:
  1. Minors. Many states have laws expressly prohibiting a minor from being a patient advocate. The age of majority could be 18, 19, or 21 years of age, depending upon the state. Some states have exceptions to this prohibition for married or emancipated minors.
  2. Your health care providers. Some states not only prohibit your health care providers from acting as your medical agent, but also preclude the owner, operator, or any employee of any facility in which you are a patient or resident from acting in that role. Some states that have adopted this prohibition make an exception for individuals who are related to you. A few states, such as Kansas, Missouri, and Kentucky, also have an exception if that person is an active member of the same religious organization as you.
We Can Help
If you have not designated a person you trust to act as your medical agent, we can help you think through your choice—as well as back-up choices if your advocate is not able to serve when needed. In addition, we can help ensure that your choice is properly memorialized in writing as required by state law. Please give us a call today to discuss naming a medical agent, as well as other advance directives you need to inform your advocate and family members about your wishes for your medical and end-of-life care.

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