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What Is A Healthcare Surrogate?


In order to designate an agent to make health care decisions, one must sign a Health Care Power of Attorney. Well, what happens if you or your loved one never gets around to signing a health care power of attorney and you fall critically ill or are in an accident?  The State legislature is aware that this is a common issue.  In Arizona we have a specific statute that allows a person to act as the “surrogate health care decision maker” in these circumstances.

The health care provider must make a good faith effort to find someone to make health care decisions for the patient.  The order of priority is as follows:
1. The patient’s spouse, unless the patient and spouse are legally separated;
2. An adult child of the patient. If the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonably available for consultation;
3. A parent of the patient;
4. If the patient is unmarried, the patient’s domestic partner;
5. A brother or sister of the patient; or
6. A close friend of the patient.

For the purposes of this paragraph, “close friend” means an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s health care views and desires, who is willing and able to become involved in the patient’s health care, and to act in the patient’s best interest.

If none of the people on the list can be located or if none of them are able or willing to assist in decision making, then the patient’s attending physician in consultation with the institutions ethics committee or if that is not possible, then the attending physician must consult with a second physician who concurs with the decision.

A health care surrogate cannot authorize inpatient mental health care treatment.  Although the health care surrogate could petition the court to become the guardian for such person and include a request for mental health authority, if applicable. 

Hopefully you and your loved ones will make completing a health care power of attorney a priority, but if you do not meet the goal, at least you understand how these decisions will be made. Encourage every person you know over 18 to have a healthcare power of attorney!

Written by: Emily B. Kile, Esq.

Things to Think About With Living Wills

I hope you and your family are safe and healthy.  These are difficult and stressful times emotionally, financially, and psychologically.  However, now is a good time to think about whether the choices you may have made need to be reviewed or the documents you never signed need to be completed. 

If you have a Living Will or other end of life directives, think about what decisions you might want if you needed to be on a ventilator due to COVID-19.  Or, it might direct that you don’t want experimental treatments. Would you make a different decision if it was for a different reason?  Review your Living Will and see if it is flexible enough to cover such situations. 

Think about writing a letter of instruction to your family and health care agents.  Express what you are thinking about right now regarding what treatment you want and when.  Part of the purpose of these documents is to give our loved ones and decisions makers the tools they need to make decisions that will be very difficult.  Provide your “voice” now while you can.  Try and alleviate the guilt your decision makers might otherwise have if they had to make those decisions without knowing your choices.  As hard as it is, having these discussions now, when we all feel vulnerable is of critical importance. 

While the Living Will is about end of life decisions, remember that your health care power of attorney nominates a decision maker for a number of other health care choices.  The decisions might be about medical choices when you have a memory disorder and not necessarily only about end of life choices.  For example, your health care agent might need to decide which course of treatment makes sense if you had dementia and pneumonia.  The health care power of attorney might also give direction about whether you have a preference for burial or cremation.  It is entirely possible that your end of life decisions are also set forth in the Health Care Power of Attorney, or they might be set forth in a separate document.

It is important to have health related documents to speak when you cannot and to name decision makers you trust.  Additionally, give copies of those documents to your decision makers so they are easily available when needed.  Especially now when we are all distanced from each other, mailing or emailing critical documents is more important than ever!

We wish you all the best.  Stay well and stay in touch!

Written by: Jennifer Kupiszewski, Esq.

NEW Webinar – Estate Planning And Paying For Care: ALTCS and VA Benefits by Emily B. Kile, Esq.

Banner Health
Emily B. Kile, Esq.

Do you have questions about estate planning? Long term care planning? Well you’re in luck! This webinar, sponsored by Banner Health, features Emily B. Kile, Esq. who has over thirty years experience as an estate planner. The program starts with Emily explaining the basics of estate planning. The  audience was able to ask questions that are likely on your mind as well; an example being, “Why can’t an IRA be titled to a Trust?“. Emily goes on to explain Healthcare Powers of Attorney, Living Wills, Do Not Resuscitate instructions and how COVID-19 is currently impacting peoples estate planning decisions. As Emily is also an experienced long-term care planner, she touches base on the costs of long-term care and the available options to pay for such, including financial and medical eligibility for Arizona Long Term Care Services (“ALTCS”).
This webinar was created to help you understand the intersection of estate planning, long-term care and VA benefits so you can better protect yourself and your loved ones.

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