We advise all of our clients to name an agent under a health care proxy to make health care decisions for them when and if they cannot do so for themselves. Many clients want to name more than one person to this role.
They may not want to be seeming to play favorites by choosing one child over others. Or, more often, they want any health care decisions to be made by all of their children acting together. After all, these can be life and death decisions.
So, can a client name all of her children to serve as her agents under her health care proxy?
The answer is “no.” While we don’t know if the legislature thought this through when it created the statute authorizing the appointment of health care agents, M.G.L. Chapter 201D, it clearly talks about appointing a single agent. Here’s the pertinent language:
Every competent adult shall have the right to appoint a health care agent by executing a health care proxy.
The provision goes on to permit the appointment of an alternate agent, but does not speak of appointing multiple agents at the same time. While this may have been a simple oversight by the legislature, most practitioners and commentators have interpreted the language to permit the appointment of only one agent at a time.
Why Only One Agent at a Time?
There are some reasons that this may have been intentional on the legislature’s part — the main one being that it avoids disagreements. Health care professionals only need to look to one person for authority to make decisions. If there were more than one agent appointed, they could disagree and there might be dueling agents giving doctors and nurses conflicting instructions.
Even when there’s not disagreement among family members, it can be useful to have a single point person to communicate with health care providers in order to avoid misunderstandings.
Of course, this can be a great burden on the person appointed. In most cases, the agent will want to talk with other family members before making any decisions in order to share the load. In almost every case, the more transparency, the better.
Also Sign a HIPAA Release
Technically, the health care proxy only becomes effective when a physician determines that the patient has become incapacitated. But there can be times when it’s important for others to communicate with health care professionals before this determination has been made and it can be important that people other than the health care agent be able to communicate with such medical personnel. This can be authorized through a HIPAA release which can name any number of people to communicate, with the health care agent still directing health care decisions.