Choosing a Health Care Agent

Choosing a Health Care Agent

In the U.S., adults (those who are at least 18 years old) make their own health care decisions, unless they lack mental capacity.  What happens when you are mentally unable to make your own health care decisions?  If you have an Advance Health Care Directive, the hospitals will follow this legal document to determine who can make your medical decisions and what your preferences are in certain scenarios. 

What happens if you do not have an Advance Health Care Directive?  If you are legally married, hospitals may likely presume that your spouse is authorized to make these decisions.  If you are not married and it is not clear who should make these decisions, hospitals are put in a hard situation to determine who to reach out to and how to contact them.  This can jeopardize your care and cause delays and complications for medical treatment.  A conservator or court appointed guardian may even need to be appointed for you through a court process.  Consequently, it is HIGHLY recommended for every adult to get their Advance Health Care Directive executed.

Even though we often don't expect anything to happen to ourselves anytime soon, choosing a health care agent is an important decision that requires a lot of thought.

Your health care agent should have a few qualities:

  • At least 18 years old
  • Mentally and emotionally able to handle making health care decisions
  • Trustworthy and has a good relationship with you
  • Can reasonably be expected to honor your wishes

In California, your health care agent CANNOT be your own doctor.  It also cannot be a person who works for the health facility in which you are being treated, or the community care/residential care facility in which you receive care, unless that person is related to you by blood, marriage, or adoption, or is a co-worker.

The role of a health care agent is to be able to make a medical decision when you are unable to.  The ideal health care agent can assess the situation (utilizing the HIPAA authorization to review any pertinent medical history and records), think in your perspective what you would have wanted, and not become biased by emotions.  Please make sure to let them know you are considering them for this role before executing your directive; it is important that they feel equipped to make these decisions in your favor.

Your health care agent can be local or live farther away.  Our attorney, Shannon, contacted several medical clinics to understand their procedures for getting authorization from health care agents.  If the decision is more minor, for instance, getting a blood transfusion, authorization may be given over the phone (after the identity of the agent is verified).  If the decision is more serious, like having to decide whether to remove a patient off life support, the general consensus is that the health care agent would need to make the decision in person.

You can decide to have several health care agents who either have to decide unanimously or in an order of priority.  If you are planning to choose co-agents who must decide unanimously, please consult with an attorney about how this functions in practical effect.  If your relationships change or the nominated agents would no longer be able to take on this role, then you do have the ability to get a new Advance Health Care Directive (provided you still retain mental capacity).

Tip: Your Advance Health Care Directive can be filed with your current physician's office if you would like.  The typical protocol is that you would bring a copy of your directive, then it would be scanned and put in your digital patient record.  If you receive any elective procedures like surgery, the medical team will generally ask you to bring a copy of your directive.   If there are any changes (agents' addresses change, decide to change the agents, change in medical wishes), please ensure that your physician's office has the newest information on file.  If you prefer not to have your directive filed with your physician's office at this time, please be sure that your health care agents have access to this document.