The Importance of Execution of a Health Care Proxy

April 2005

By: Michelle L. Feinberg, Esq.

The Terri Schiavo case has demonstrated, as no other case before it, the importance of the creation of a Health Care Proxy. Beyond the obvious misfortune this woman suffered as she slipped into the vegetative state, the battle that ensued over her course of treatment and ultimate conclusion, fought both privately and publicly by her loved ones, intensified her family\'s grief a thousand-fold. While we do not always have control over avoiding severe medical problems, we certainly can avoid divisiveness among family members at such a difficult time with the execution of a health care proxy.

Living wills, documents in which an individual can recite his or her preferences with respect to what medical decisions should be made on his or her behalf, are not recognized by Massachusetts courts. A health care proxy is a more powerful document, however, and would be upheld by the court. It is in this document that a person can nominate another individual, known as the health care agent, to make medical decisions for him in the event that he cannot communicate his wishes to the medical professionals. Had Terri Schiavo executed such a document, which is known in Florida as a designation of health care surrogate, it would have been clear from the onset of her illness which of her relatives had the authority to make medical decisions on her behalf.

It is crucial that the principal provide her designated health care agent with enough insight into her wishes so that the health care agent is able to make the proper decisions for the principal, which would be in line with the decisions she would make if able to speak for herself. It is recommended that a successor health care agent is nominated to serve in the event that the initial health care agent is unable to serve in a timely manner.

Your estate planning attorney can assist you with the preparation and execution of this critical document as part of your estate plan.