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Selecting Your Health Care Agent

Written by: Rebecca Rosefelt, Esq. , Contributing Author
Reviewed by: Jordan Walker, J.D. , Legal Writer
Last updated March 11, 2024

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Deciding who you will name as your health care agent is one of the more difficult and important decisions you can make when planning for the future. If you are unable to speak for yourself, they will be your strongest advocate by making sure doctors follow medical care wishes laid out by you.

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A legal document used to put your health care wishes in writing can be called many things including but not limited to “health care directive,” “advance directive,” “living will,” “durable power of attorney for health care,” and “health care proxy form.” By using one of these, you can assign someone the ability to make medical decisions for you if you are incapacitated or otherwise unable to make medical decisions for yourself. Your agent is unable to override the health care preferences you set out but will have the authority to make most other treatment choices.

Depending on your state, the individual you choose to act as your health care agent may be called an attorney in fact, health care surrogate, health care proxy, or some other similar term.

Factors To Consider When Selecting Your Health Care Agent

Your primary concern when selecting a health care agent should be trust. This person may be put in difficult circumstances, so you need to be able to trust that this person will make health care decisions on your behalf that you would make for yourself. Here are some other factors to keep in mind when selecting your agent:

  • Assertiveness: This person should be comfortable with the idea of decision-making and disagreeing with your family, friends, and health care providers, as well as being capable of taking the matter to court if necessary.
  • Family Dynamics: Family members may have different ideas about end of life and quality of life issues. In addition, who you choose may cause your loved ones to have hurt feelings. Taking some time to explain your choice now may help reduce the chances of misunderstanding and family drama.
  • Proximity: While it is not necessary that your health care agent live nearby, they may need to spend lengths of time at your home or health care facility to make your health care decisions. This can be a good reason to skip some obvious candidates and explain to people why you chose one over another.
  • Longevity: You may want to consider the expected longevity of your agent. It makes sense to choose your spouse or a close friend over your parents or an adult child over a spouse who suffers from a medical condition.
  • Financial Agent: If you select one person as your financial agent and choose someone else as your health care agent, think about whether they can work together. You want your financial agent to be in agreement with your health care agent so medical bills are paid and you receive the kind of care you desire.

Who You Shouldn’t Name as Your Health Care Agent

It may make sense to have your doctor or a trusted hospital employee be your health care agent, especially if they have been making medical decisions with you for most of your life. However, most states have laws that prevent this, as it may put your doctor or the hospital employee in a conflict of interest and cause other problems. Some states also prevent paid caregivers from being named as a power of attorney on your advance directive form.

Note that this may apply even to your preferred agent (e.g., spouse) if they are a doctor or hospital employee. Review your state’s laws to confirm any restrictions on who you can name as your health care agent.

Choosing More Than One Health Care Agent

A common question that comes up for someone making end-of-life choices is whether they can choose two or more people to make their medical decisions.

Health Care Coagents

Generally, it’s best to only name one person who will be solely responsible for making health care decisions for you. It may seem like choosing coagents is the diplomatic solution to potential family issues but is more likely to cause problems than solve them. It often results in fighting between family members and can strain relationships between people you care deeply about. It also can delay or cast doubt on decisions if one agent is unavailable and neither doctors nor courts want to follow through with questionable decisions. In a worst-case scenario, one agent could take a matter to court, which would cause considerable delay and acrimony between the parties.

Backup Health Care Agents

Rather than name multiple agents, you can choose backup agents who assume responsibility if your first choice is unavailable. Backup agents are also known as successor or alternate agents and may even be necessary in the event your primary agent passes away or is unable to perform their required duties. This can also be a diplomatic way to deal with family issues by making your backups feel trusted and included.

Declining To Name a Health Care Agent

If you don’t want to name a health care agent, you can simply put your health care wishes in writing to act as a guide for your attending physician and other health care providers. By not choosing an agent, your treatment will largely be guided by your own decisions set forth in your health care directive & living will. You can also choose to name a health care agent and include instructions you wish your agent to follow when making decisions on your behalf.

More About Planning for End-Of-Life Health Care

health care directive often consists of two parts:

  • Health care power of attorney naming someone to act as your health care agent
  • Living will containing your medical preferences and health care wishes

Your health care agent will have access to your medical records and safeguard your treatment instructions. Other advance care planning issues often addressed include:

  • Life support treatments like ventilation or dialysis
  • Artificial nutrition and hydration, such as feeding tubes
  • Long-term living accommodations for medical treatment, such as a nursing home or assisted living facility
  • End-of-life care, such as whether you would prefer to die at home or in a hospital

These documents may sound complex, but many people choose to create their own when estate planning. You can try state-specific health care directive and living will forms to create a health care plan that meets your needs.

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