Should I Serve as a Healthcare Agent Under a Power of Attorney (POA)?
by ACTEC Fellows Jean Gordon Carter and Linda Funke Johnson
A healthcare agent, also known as a healthcare surrogate or healthcare proxy, is an individual that you designate and empower through legal documents to make medical decisions for you if, at some future time, you cannot make decisions yourself.
ACTEC Fellows Jean Gordon Carter and Linda Funke Johnson explain what you need to know before accepting this important legal responsibility.
Jean Gordon Carter: Hello, I’m Jean Carter, an ACTEC Fellow from Raleigh, North Carolina. And with me is Linda Johnson, an ACTEC Fellow from Fuquay Varina, North Carolina. Our topic today is serving as a healthcare agent under a Healthcare Power of Attorney (POA).
Some states will refer to that as serving as a healthcare surrogate under a healthcare proxy. So, it’s essentially someone else being delegated authority for healthcare decisions. Linda, I’ve been asked to serve as the healthcare agent for a friend of mine. What does that mean?
What Is a Healthcare Agent?
Linda F. Johnson: Well, Jean, your friend’s asking you to step into their shoes to make their medical choices. And what that will cover is simple things about having medical appointments, but it could be as major as having surgery. Perhaps your friend can no longer live alone, so you’ll have to find a healthcare facility. Maybe your friend needs rehab services. Your friend may need caregiver services. And, of course, every single medical decision she or he can make for themselves—this is what they’re asking you to do.
Explanation of Healthcare Agent’s Responsibilities
Jean Gordon Carter: So, it sounds like my responsibilities would be to consent to things medically that my friend might need to have done?
Linda F. Johnson: It covers the full gamut, and also where they’re going to reside, because there may be a point in time where they can’t reside in the home any longer, and you would need to pick a facility for them.
Jean Gordon Carter: What happens if my friend is in a terminal situation and it doesn’t look like they’ll live much longer? What kind of responsibilities do I have at that point?
Linda F. Johnson: Then your choices, of course, would be to make sure there’s appropriate medical care and caregivers, all of the food and this and that—that needs to be there to take care of them. But then you also may be asked, depending on how your friend completes their paperwork, to make their end-of-life choices for them. And that means in our state, North Carolina, if you are terminally ill and, at death’s door, if you are in a permanent coma situation,
or if you have severe cognitive impairment that begins to affect your ability to breathe and swallow, then your friend would have the choices to say, “I would like my agent Jean to make the call for end of life,” to decide whether machinery’s on or off, to determine whether you should still get any more treatment—that would all fall to you.
Or your friend can choose to say, “No, I don’t want to burden my agent, so when I hit the thresholds I just covered, then and only then do you take me off of all machinery and let me naturally expire.” Or again, you don’t have to make a choice, but they can choose to stay on all machinery and equipment and assistance till their body naturally expires.
Can the Healthcare Agent Get Assistance Making Decisions?
Jean Gordon Carter: This sounds like a lot of responsibility. Can I get some help?
Linda F. Johnson: I think you can, Jean. I think, aside from all of the caregivers and the doctors’ offices, perhaps you might look to see if there are family members of your friend’s that would like to have some input on the options, or perhaps you might need to talk to a care manager or a social worker who specializes in making these types of decisions.
Healthcare Agent’s Liability
Jean Gordon Carter: What if I do something wrong?
Linda F. Johnson: I don’t think you can do anything wrong, Jean, as long as you are acting in the best interest of your friend. That’s the standard that you will be required to function under.
Jean Gordon Carter: It sounds like I need to talk with my friend and figure out what she wants me to do then. Is that the proper course?
Linda F. Johnson: I believe if you are going to take on the job of being her agent, then you need to have some long conversations about her thoughts on healthcare, end-of-life choices, who she wants to visit at the end. Those are all things I think you need to cover.
Is the Healthcare Agent Responsible for Medical Costs and Bills?
Jean Gordon Carter: That sounds fair. And if I’m consenting to healthcare, how do I pay for that? Am I responsible for the bills that get incurred in healthcare?
Linda F. Johnson: No, you’re not responsible, unless you sign on as a personal guarantee when you’re checking them in somewhere, which you would not do. But you will work with the trustee or the agent under the durable power of attorney to find out exactly how much your friend can afford for healthcare. And if her or his asset base is low, I would suggest then that the agent would need to apply for government services for your friend.
Options If a Healthcare Agent Is Not Available
Jean Gordon Carter: Linda, this is a very good friend of mine, but it does worry me to do this kind of role. But I don’t know what other options she has. Do you have some other suggestions for people in looking for a healthcare agent?
If you can share with your friend that you’re just really not comfortable with the role of agent because of all of the choices and responsibilities you’ll have, I could suggest that you would look to some type of corporate care manager. I’m trying to think of the right way to describe it. And I do use those frequently for folks that either have very fragmented families or people that just have no one. Unfortunately, there are people.
So there are care agencies. They will make all of the health care decisions as necessary. Many of them are social workers, nurses, and they, in fact, will hire all the caregivers. They’ll have a whole full treatment plan. They take on that whole leg of all medical choices.
Jean Gordon Carter: That’s a great tip. Thank you. Well, I’m going to ask you the big question. Should I serve as a healthcare agent for my friend?
Linda F. Johnson: I would think it depends on how good a friend you are, because if they have no one else, you probably need to serve. But you do need to remember it’s very difficult to insert yourself into a situation making healthcare decisions if there are a lot of other family members around.
Conclusion
Jean Gordon Carter: That’s good advice. Linda, thank you for talking with me about this. I did want to let folks know that the ACTEC library of videos and such has some other very good resources on similar topics, some of which include tips for people living by themselves, which would include appointing a healthcare agent. Linda, thank you for your time today.
Linda F. Johnson: Thank you so much, Jean.