Health Care Agents: Do I Have to Choose?

One of the most important aspects of Estate Planning is the completion of an Advance Health Care Directive ("AHCD").  An AHCD has two main components: (1) making your wishes known regarding your general health care philosophy; and (2) naming an agent who has the responsibility to carry out your wishes in the event of your incapacity.  Selecting your health care agent requires careful considerations.

You may wish to name an adult child as your health care agent.  If you have more than one child, you might be tempted to name all of your children as co-agents so as not to choose between them.  While naming co-trustees on your Revocable Living Trust or co-agents on your property Power of Attorney might be prudent in certain circumstances, the vast majority of doctors and lawyers strongly discourage you from naming co-agents for health care decisions.

Naming co-agents for health care decisions can create problems when it becomes critical that health decisions are made quickly.  One co-agent might be available while another co-agent could be out-of-town or simply out-of-reach.  The available co-agent might be forced to make a decision that the unavailable co-agent – who was not privy to the difficult, exigent circumstances – might later find objectionable.  On the other hand, if the available co-agent waits until the unavailable co-agent can be reached or is able to visit the health care facility, critical time might be lost.  Furthermore, even if both co-agents are available, they might not agree on a specific course of action and they might interpret the medical options, possible risks, expected benefits, and even your wishes differently.  When siblings are named as co-agents for health decisions, issues of sibling rivalry and differences of opinion can impede the decision making process. This is why most doctors prefer to deal with only one spokesperson rather than a "committee" of spokespersons.

The problems involved in naming co-agents on health care decisions are unequivocal to the point where the "standard" AHCD Form that is most often used in California was designed specifically not to have a section for naming co-agents with the purpose of discouraging clients from naming co-agents on health care decisions. 

It is, however, important to name alternate agents on your AHCD who each serve one at a time.  If the first agent is unwilling or unable to act – or if the first agent cannot be reached by health care professionals – then the next agent named in the AHCD will be in charge. 

It is critical to seek the counsel of an attorney or a doctor when executing an AHCD so that you can be properly advised on how to make the critical decisions on the form.  Recent laws allow Medicare to pay doctors to have this crucial discussion with their patients.