When your loved one is hospitalized, your most important legal document is a medical power of attorney, also known as a healthcare proxy — it appoints a trusted person to make medical decisions if your family member no longer can.
Ideally, this document spells out what your loved one’s wishes are for their hospital care. Unfortunately, too many adult Americans haven’t assigned someone to be their healthcare proxy to make important decisions about life support or when treatment should stop.
This lack of clarity can lead to family headaches on top of heartaches. “When that happens, decisions often fall into a gray area where multiple family members feel entitled to weigh in,” said David Watson, an estate planning attorney based in Mequon, Wisconsin. “I have seen situations where distant or estranged relatives come out of the woodwork insisting that everything possible be done to keep someone alive, even when that conflicts with what the patient would have wanted. This creates unnecessary stress, conflict and delay at exactly the worst time.”
That’s why the biggest mistake is not having any healthcare proxy at all. “Anyone over the age of 18 –– the age at which certain medical and privacy rights vest –– should have health directives in place,” said Eido Walny, founder of Walny Legal Group, an estate planning and asset protection law firm based in Milwaukee. “If an emergency occurs, whether you are 18 or 81 years old, these directives will guide your care.”
Beyond not having one at all, estate lawyers told HuffPost about the six other biggest mistakes they see all the time with medical powers of attorney that they want you to avoid.
Mistake #1: Your healthcare proxy document isn’t legitimate.
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“Families will often rely on verbal statements like, ‘Mom told me I’m in charge,’ or assume that being the oldest child or most involved automatically gives them authority. It does not. Without a properly executed document, healthcare providers often deal with competing voices,” Watson said.
Another problem is relying on documents that are not completed, which can lead to expensive court proceedings to decide who is the right healthcare proxy.
“I see people bring in unsigned forms, partially completed templates downloaded online, or documents that were never properly witnessed or witnessed incorrectly by other family members,” Watson said. “In those cases, hospitals may refuse to rely on them, which also creates that gray area.”
Watson noted that people mistakenly believe that having a living will also grants someone the authority to make medical decisions, but it does not. “A living will, often included as part of a larger healthcare proxy, only provides guidance on end-of-life care but does not appoint a decision-maker, so by itself it is not enough,” he said.
To avoid these mistakes, make sure your medical power of attorney is valid by having it drafted by an attorney, Watson recommended. That way, the document can be correctly executed with the required witnesses –– who are unrelated and over the age of 18 –– and you can confirm that the person named as your agent is clearly willing to serve, he said.
Mistake #2: You don’t assign the right person to make these important decisions.
Alice Choi, an estate planning attorney at Novick, Graffeo & Choi in New York City and Huntington, New York, said that too often, people go by traditional familial hierarchies for their healthcare proxy. They will pick the eldest child or their spouse as their agent, in order to avoid family members feeling slighted when that person may not be the best fit.
The hard reality is that sometimes your family member might not share your values to follow through on your desired care, and you should consider someone else.
That’s why Choi advises people to talk extensively with their chosen agent, so they know what their wishes are. “They should be advocating for what you want, not what they want based on what their personal beliefs or religious beliefs” are, she said.
Mistake #3: Your healthcare proxy document is impossible to find when most needed.
A health directive is no good if no one can find it. A surgery that is suddenly needed is not the time to be digging through your parents’ cabinets for their legal documents.
Unlike other estate documents that will be administered by judges, lawyers, or bankers, health directives are generally executed by doctors and healthcare providers, and it’s imperative that they have it, Walny said.
“It is important to disseminate the health directives to your primary physician, local hospital, and at least the people you name as agents. The document does no one any good when it is needed but cannot be located or is locked in a safe,” Walny said. “Once it is signed, get it out to the people who are most likely to need it in the event of an emergency. Most doctors and hospitals now ask for these documents at the time of check-in, which is great.”
Mistake #4: You assume having a medical power of attorney is enough.
A healthcare proxy will grant someone the power to talk to doctors and nurses about urgent emergency decisions, but it won’t cover every medical headache like Social Security or insurance claims. For medical issues involving money, you need to assign a financial power of attorney, which can be a separate legal document.
“If you have to file insurance claims, they’re not going to talk to you if they don’t have a [financial] power of attorney, so you do need a separate financial power of attorney while they’re hospitalized,” Choi said.
Mistake #5: You don’t assign enough healthcare proxies.
When your loved one gets incapacitated from an accident, you might need to make quick life-or-death medical decisions about their care. For this reason, Choi recommends having alternative successor agents listed who can be contacted if the principal healthcare proxy is unreachable.
“I definitely have seen [cases] where the first one wasn’t available and it goes to the second one,” Choi said. “With the medical power of attorney, I want there to be at least three minimum” agents, she said. Ideally, this document should also have the agents’ cell phone numbers, email addresses and other best ways to be contacted, Choi noted.
Mistake #6: You never update your healthcare proxy.
Another critical mistake when it comes to these documents is never updating them to reflect your current relationships.
“Like all estate planning documents, health directives are not ‘set it and forget it’ rotisserie ovens,” Walny said. “They are evolving documents that require updating. I recommend an update about every five years. The update is a good time to check if directions still reflect current wishes, whether agents and their contact information are still current, and whether the laws have changed.”
Above all, having a clear medical power of attorney in place is one of the most important decisions you can make to help you and your family in the future. So don’t put it off too long. Choi said a lot of younger people don’t have one in place “and then it becomes an expensive process to appoint someone.”
Take it from estate lawyers about the value of having one. Last year, Walny said his 19-year-old son got a traumatic brain injury from an accident. “His healthcare [power of attorney] made a huge difference for our family,” Walny said.
When Walny’s son woke up from his coma trying to leave the hospital, “The medical staff declared him incapacitated, activated his health directives, and took his decision-making powers out of his hands and placed them into the hands of his mother,” Walny recalled. “Without a shadow of a doubt, that maneuver saved us heartache, time and money, and directly contributed to his recovery.”