The Who and the What: Your Health Care Representative and Living Will
A health care proxy names who speaks for you; a living will says what you want. Why you need both, and why it helps to put your wishes about feeding tubes in writing.
· 7 min read · Health care proxy, Advance directives, Connecticut
About 1 in 3 U.S. adults has any kind of advance directive. A study pooling 150 surveys of nearly 800,000 people put it at 36.7%. The most common reason people give for not having one isn’t fear or cost. It’s that they didn’t know about them.
Two documents do most of the work. They are easy to confuse and they work best together.
The health care proxy: who decides
A health care proxy (also called a medical power of attorney) names a person, your “agent,” who can make medical decisions for you if you can’t make or communicate them yourself. Your agent steps in only when you lose that ability, not before.
The strength of a proxy is that it gives doctors a person, not just a page. Nobody can foresee every illness, treatment and choice; a person who knows your values can weigh what is happening in front of them.
It matters most for unmarried partners. In many places a spouse or close relative can decide by default. An unmarried partner often has no legal standing at all without a proxy, however long you have been together.
The living will: what you want
A living will records what treatment you would and wouldn’t want in serious illness or at the end of life: CPR, a breathing machine, a feeding tube or IV fluids, dialysis, and comfort care. You sign it while you are well; it speaks when you can’t.
Its limit is the other side of the proxy’s strength. Very specific instructions may not fit the situation that comes up, and very broad ones (“no heroic measures”) can be hard to apply. That is why the two go together: the living will is the “what,” and the proxy is the “who” who applies it to the real situation.
Why it helps to write it down
Courts have long been careful here. In a well-known 1988 New York case, In re Westchester County Medical Center (O’Connor), New York’s highest court refused to allow a feeding tube to be withdrawn from a woman who could no longer speak for herself. She had said she didn’t want to be kept alive artificially, but she had never talked specifically about nutrition and hydration, and one of her daughters said she didn’t know what her mother would choose. The court required “clear and convincing” evidence of the patient’s own wishes, and said it would err on the side of preserving life.
The lesson travels across state lines: the person deciding for you needs to know your wishes, especially about artificial nutrition and hydration (feeding tubes and IV fluids). If you have a view, say it to the person you name and write it down.
Signing
Each state has its own rules. In Connecticut, the person who speaks for you is called your health care representative, and the appointment is usually signed together with your living will on one form of health care instructions, in front of two adult witnesses. The person you name can’t be a witness, and a notary isn’t required. Your attorney confirms the details at your signing appointment.
Once it’s signed
- Give copies to your agent, your backup agent and your doctor, and keep one where it can be found.
- Talk with your agent. The document only helps if the person knows what you would want.
- Add a HIPAA release so your agent and family can get updates from doctors.
- Review it after a diagnosis, a divorce, or a change in who you’d want to decide.
Related reading
Sources: Yadav et al., Health Affairs 36(7), 2017; Rao et al., American Journal of Preventive Medicine 46(1), 2014; In re Westchester County Medical Center ex rel. O’Connor, 72 N.Y.2d 517 (1988); Conn. Gen. Stat. §§ 19a-570 to 19a-580d (to be confirmed by the firm).
This article provides general educational information and is not legal advice. Consult a licensed attorney in your state for guidance specific to your situation.
General information, not legal advice. This article explains common estate-planning topics. It doesn't account for your circumstances, and reading it doesn't make you a client of Johns & Mathews Legal. Rules differ from state to state; our attorneys advise on Connecticut law.