RNH Law Blog

Coronavirus: The Most Important Legal Document Every Adult Needs

As the coronavirus continues to disrupt daily life and leave Americans uncertain of the future, you do not need to feel helpless during the pandemic. In fact, now is the right time to be proactive and plan ahead. One of the most important and relatively easy things you should do is to select a healthcare agent and set up your Healthcare Power of Attorney (HCPOA).

What Is a Healthcare Agent?

A healthcare agent (also called a medical agent, healthcare surrogate, a healthcare proxy, or a medical proxy) is a person you authorize in a healthcare power of attorney to make decisions about your medical care. Your agent can make these decisions if you become too ill to make them yourself or are otherwise unable to communicate your wishes.

Why is it important to choose a medical agent now?

As of October 7, there are 7.8 million total cases of coronavirus reported in the United States. Even if you get sick, it is likely you will have mild symptoms and recover quickly. However, since the way the virus works is not fully understood, it is best to plan for the worst and hope for the best. Part of that planning is your healthcare power of attorney. That document ensures you have someone to make healthcare decisions for you if you are unable to.

What Should I Consider When Choosing My Healthcare Agent?

The role of a healthcare agent is crucial in your estate plan. The person you choose will, quite possibly, have your life in their hands. They will be able to consent to a treatment plan, decide whether to accept or refuse medical treatment, and choose which healthcare providers or hospitals to use for your care. Because of this, you must think carefully about who you choose for this role. Most people simply assume that their spouse or their children would be best suited for this role. However, those people may not be best suited to act as a healthcare agent. Here are some factors to consider in the selection process:

• Emotional maturity. Everyone handles stress in their own, unique way. Consider that the person making healthcare decisions for you may be under an extraordinary amount of stress when they have to make critical decisions about your healthcare. Being able to set that emotion aside and make difficult choices is difficult, at best. Others simply may not be a strong advocate when faced with multiple, contradicting opinions on your treatment or are suggesting a treatment plan you have informed your advocate that you do not want. You need to choose someone who can make rational, reasoned decisions under very trying circumstances. Sometimes, this means that you need to look outside your family for someone who will be a strong advocate and make difficult decisions in line with your wishes, not their own.
• The person acting as your healthcare agent should be someone in close proximity to you. Your agent will be called on to act quickly on your behalf in the event of a medical emergency. Furthermore, that person may need to act as your agent for an extended period of time if your incapacity is prolonged. Having someone that can advocate on your behalf, in person if need be, is an important consideration. Currently, many people are still living under mandatory or recommended quarantine orders or are simply not willing to travel to another city or state. This means that you should think of more than one person to act as an alternate healthcare agent. These days, there is always a possibility that your first choice just will not be available when you need them.
• Is willing/able to serve. Although it would appear to be a simple task, acting as a healthcare agent can be a time-consuming and emotionally taxing role. You need to make sure that the people you choose as your healthcare agent are able and willing to set aside the time necessary to act in that role. This is one area where you do not want to make assumptions. Be proactive and have a talk with the people you want to choose. Discuss this with them thoroughly before naming them in your healthcare power of attorney. There is another consideration for our elderly clients: naming friends or family members who are also older. This simply increases the chances that your chosen agents will experience mental or physical decline at the same time as you, which could impair their ability to be your advocate when you need it most.
• Will honor your wishes no matter what. It is important to fully discuss your wishes with the people you choose for your healthcare agent. Everybody has opinions and views on healthcare and not everyone sees this the same way. So, it is entirely possible that your agent will not agree with your healthcare choices. Your agent must be someone that can set aside their own, personal views and opinions to ensure that your healthcare wishes are followed. This is why it is imperative to fully discuss your wishes with your chosen healthcare agent. Simply put, you should not choose anyone who you do not trust to carry out your wishes.

Is There Anyone I Should NOT Choose?

Here in Illinois, there are laws prohibiting certain people from acting as your healthcare agent. These prohibitions rule even if they are otherwise qualified to act in that role:

• In Illinois, your agent must have reached the age of majority, or 18 years old. Although exceptions to this exist, it is better to simply choose someone who is of legal age. The last thing you want is medical staff not knowing the law and dishonoring your healthcare power of attorney over a misunderstanding.
• Your health care providers. Illinois prohibits your health care providers from acting as your healthcare agent. Furthermore, the owner, operator, or any employee of any facility in which you are a patient or resident is precluded from acting as your healthcare agent as well. There are variances across all the states, so it is best to consult an attorney in your state for proper guidance.

Need help?

Healthcare powers of attorney are among the most important legal documents you ever prepare. This is even more important, especially in light of COVID-19. Picking a healthcare agent can be a difficult job. We are willing and able to help you through making that choice.

We can also help with any other estate planning needs you have. Whether that’s setting up a financial power of attorney, last will and testament, or a trust. Please contact us today to set up a free consultation and discuss how we can help you and your family prepare should you fall ill from the coronavirus or any other illness.