I have written several articles for this paper in which I indicated that anyone who charges to prepare the health care proxy is not being honest. Given the increasing complexity and the advice that is necessary when completing a health care proxy, that statement was probably too harsh. However, the document itself is relatively simple and I still prepare them for clients as a courtesy. The New York City Alzheimer's Association, for which I regularly speak, distributes the documents with language for optional instructions already filled in.

The basic idea of a health care proxy is simple. You may appoint one primary agent, not co-agents, because the treating source does not want to be involved in a question over who has the authority to make medical decisions. There can be one alternate agent. The document is signed by the principal but it does not have to be notarized. It needs only to be witnessed by two people unrelated to the principal. A copy of the form is acceptable, contrary to most legal documents for which an original is necessary. These are issues I have dealt with in the past.

Recently, a more subtle issue has cropped up with respect to health care proxies. There are optional instructions on the proxy and I always advise my clients to simply indicate the following language: "I have spoken with my agent and alternate agent regarding my wishes specifically regarding feeding and hydration tubes". That is the only indication regarding health care wishes. There should be some indication regarding knowledge of the principal's wishes for feeding and hydration tubes, but nothing else is required. Of course, as an attorney I must add something, so I typically add language under the Health Insurance Portability Accountability Act (commonly referred to as HIPAA) to allow the agent/alternate agent access to medical records. That is something that the Alzheimer's Association recommends, and from personal experience I also think that it is a good idea. I was the agent once when the doctor was giving advice about a procedure that seemed to be contra-indicated when I reviewed the medical records. Having access to the medical records in that situation was extremely helpful.

Clients generally want to provide more detailed language on the health care proxy about the particular types of treatments they desire, or they want to execute a separate living will. Historically, living wills were popular before the enactment of the Health Care Proxy Act in 1991. The living will usually did not appoint another individual to make decisions but simply was a declaration of your in case you were unable to express them regarding your condition. The living will would typically indicate, more or less, that no heroic measures were to be taken. To this day many attorneys prepare health care proxies and living wills, and there is a proposal in the legislature to allow the incorporation of living will statements within the health care proxy.

I have never been in favor of a living will or stating specific details as to what type of treatment one should receive on a health care proxy. While it may sound like a good idea, I believe that it causes more problems than it resolves. The first problem is that often the living will starts off with a statement such as "if the situation appears hopeless". The concern I have with that type of statement is that it can easily result in a hospital ethics committee determining whether the situation is hopeless or not. The very issue that one tries to avoid with a health care proxy - involvement of the medical treating source in the decision making process - has now been called into play. The other problem with giving specific instructions is that medical science changes every day. What may seem like an appropriate instruction today may be hopelessly outdated in the near future.

I advise my clients that they should sit down with their primary agent and alternate agents, and share their philosophy about what type of treatment they would like if their medical situation is grave. There are basically two choices. The minority opinion, (one which I hold to) is ÒLook kids, I want you to find every tube in the hospital, plug it in me and keep me in an ice cold room, do whatever's necessary to keep me aliveÓ. The majority opinion is ÒIf it looks bad, let me goÓ. Ordinarily I would say that is enough guidance for the agent to be able to make a reasonable determination. However, some clients want more detailed instructions and they do not want the instructions simply to be verbal. If a living will with more specific written instructions is desired, I will advise my clients to have it be a document for the eyes of their agents only. I do not want the document attached to the health care proxy so that it can be reviewed by a medical treating source and again result in the aforementioned complication.

The health care proxy act's original intent was for there to provide a simple method of ensuring that one's medical wishes would be honored. The health care proxy, as it exists today, does just that. The decision about treatment details should be discussed with one's agent, but it should then be left to the agents, based on their knowledge of the principal's wishes, to make the actual determination at the appropriate time.