ADVANCE DIRECTIVES ARE written documents in which competent persons state their anticipated medical decisions for the future. Directives can be communicated in one of two ways: (1) by making express written directives to healthcare providers, as in a living will, or (2) by designating another person who knows and would be sympathetic to your desires when the time for decision making arrived, if you were too incapacitated to make your wishes known. This second form of advance directive is known as a health care proxy or power of attorney for healthcare decision-making.
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| Decision Making Multiple Sclerosis |
Although the living will and healthcare proxy are both advance directives, many standardized forms for directives only incorporate one of these two types (usually only a limited living will). No matter which standardized form you may be offered, a complete set of advance directives should include both a living will and a healthcare proxy.
The basic distinction between a living will and a healthcare proxy is the type of directive involved. A living will establishes certain treatment guidelines that are to be followed in the future. A healthcare proxy does not establish treatment guidelines directly. Rather, it appoints a trusted person to act as your agent (proxy) in making healthcare decisions for you if you have become too incapacitated to make them yourself. A healthcare proxy can incorporate provisions of a living will by requiring that the proxy follow any directives stated in a separate living will, or by incorporating the living will directly into the healthcare proxy (in which case, the authority of the chosen proxy would be limited by the living will conditions stated in the healthcare proxy).
Because it is almost impossible to predict all circumstances that might arise during any future illness, it would be difficult to place all advance directives in a living will. A healthcare proxy in conjunction with a living will is necessary to safe-guard your right to self-determination. Consequently, a good set advance directives will include both a living will and a healthcare proxy.
If you become incapacitated without leaving any specific directives, your family members will generally be considered suitable substitute decision-makers. In theory, most courts agree that family members are the appropriate decision-makers, even in the absence of a proxy. In practice, however, family member decisions that are made without an enforceable healthcare proxy are not followed by healthcare providers if the providers question the good faith of the family members or strongly disagree with the medical decision.
On the other hand, if an enforceable healthcare proxy specifically appoints the family member as proxy, healthcare providers must treat the decisions made by your proxy as if you had made them yourself. They would not be able to deviate from those decisions even if they happened to disagree with them. Advance directives that specifically appoint a proxy therefore provide protection against healthcare providers who would be hesitant to follow your values (as understood by your proxy) when you are incapacitated. Thus, healthcare proxies are critical devices for people who hold any values that differ substantially from those of the healthcare community.
Proxy vs. a Surrogate
IT IS ON this issue that an important legal distinction must be made between a proxy and a surrogate. A proxy implies that a person is designated in an advance directive, and is therefore someone appointed directly by the incapacitated patient. A surrogate is someone who is legally appointed outside of an advance directive. For example, if no valid healthcare proxy exists, a surrogate may be appointed to make decisions for the incapacitated patient.
A family member appointed without an enforceable advance directive is a surrogate. This surrogate may become empowered either by a legal relationship that automatically gives rise to right to make surrogate decisions (such as a family member) or by appointment as guardian by a court.
The extent to which a decision-maker can enforce decisions about the future care of a loved one will depend on whether the decision-maker was appointed by a healthcare proxy, in which case he or she is acting as proxy, or by some other process of law, in which case the person is legally understood to be a surrogate decision-maker.
That these two types of decision-makers are regarded differently can be seen most clearly in quality- of-life determinations (e.g., the decision to remove life support because the patient's quality of life has diminished below an acceptable level). Decisions by proxies are almost invariably followed with respect to quality-of-life decisions, in keeping with an individual's right of self-determination.
However, decisions regarding quality of life made by surrogates are examined with dose scrutiny to make sure that they conform to the incapacitated individual's desires or best interests. Again, the best way to ensure that your wishes are followed is to execute a complete set of advance directives. To find out more, you can check out Decision Making Multiple Sclerosis.