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January • 30 • 2025
Understanding Healthcare Proxies: Legal and Ethical Considerations for Healthcare Providers
Article
Summary
Learn about legal and ethical considerations for healthcare providers related to healthcare proxies.
Healthcare providers use informed consent to help patients understand their options and to empower them to make informed decisions. However, patients are sometimes unable to make decisions for themselves and must rely on healthcare surrogates. Understanding healthcare proxies is an important part of delivering care while respecting patient autonomy.
For end-of-life care and incapacity planning, individuals have several legal tools they can use to ensure their wishes are carried out. The most common are:
Furthermore, the holder of durable power of attorney is authorized to make financial decisions on behalf of another. A single person may serve as both a healthcare proxy and have durable power of attorney, but these two roles are separate. Having a durable power of attorney does not necessarily equate to an automatic authority to make medical decisions.
Patients should ensure that they have the appropriate forms to reflect their wishes and that these forms have been signed and witnessed in accordance with the applicable state law. Healthcare providers should understand these laws in the states where they practice, read the applicable forms and documents carefully, and consult with legal counsel when necessary.
When does a healthcare proxy become effective? A healthcare proxy only goes into effect when an individual loses capacity, and it is revoked when (or if) the patient recovers. As with many aspects of healthcare, this varies with state law.
Can a physician witness a healthcare proxy? Whether this is allowed depends on state law. Some states may require documents to be notarized. In addition to following state law, it’s advisable to select witnesses who are not directly involved in the patient’s care to avoid ethical concerns.
What happens if the physician cannot reach the healthcare proxy? The physician should thoroughly document repeated attempts to reach the proxy. In addition to reaching out by phone, it may be prudent to reach out by U.S. mail with confirmation of receipt, if there is time.
What happens if there is no healthcare proxy? In some cases, a patient may not have a proxy or the only named proxy may be unavailable. State law will then determine who has authority to make decisions. This may be the spouse, adult children, parents, guardian, or siblings. When the authority is shared – for example, by two adult children – a joint decision may be necessary.
What happens if a patient refuses care that a healthcare proxy authorizes? In these instances, it is important to consult with your legal counsel. The complicated nature of this situation may make it necessary to file a petition and involve a judge.
Can a healthcare proxy access the patient’s protected health information (PHI)? Once a proxy has been invoked, the proxy can access PHI to make informed decisions under HIPAA. However, the patient may still have the right to refuse to share certain sensitive information, such as information about substance use. If there are concerns, consult with legal experts.
Determining capacity is an essential part of using healthcare proxies. Capacity is also critical for informed consent, as only adults with decision-making capacity can provide informed consent.
State law dictates who has the authority to make a capacity determination. For example, under Massachusetts state law, the patient’s attending physician must make the determination. As the law is currently written in Massachusetts, other healthcare providers – such as PAs and NPs – do not have the authority to make this determination.
To determine whether a patient has capacity, healthcare providers need to understand what capacity means. As Vermont Ethics Network explains, capacity is not the same as competence. Competence is a legal term used to determine whether a person has authority to make decisions. Furthermore, only judges can rule on whether someone is legally competent. Capacity, on the other hand, is a clinical determination that assesses whether patients can:
When a physician determines capacity and invokes or revokes a healthcare proxy’s authority, it’s important to follow state law to the letter, adhere to standardized procedures, and document the process thoroughly.
The first step typically involves conducting a capacity assessment. This should be carried out in a standardized manner. A validated clinical tool, such as the MacArthur Competence Assessment Tool-Treatment (MacCAT-T), is ideal for providing a framework.
Revocation of the healthcare proxy may occur in a number of ways, including by court order or upon the death of the patient. Patients can also revoke a healthcare proxy, as long as they have the mental capacity to do so. In fact, doctors may encourage a revocation of healthcare proxy if a patient regains capacity. The doctor may also advocate for revocation if the proxy is not acting in the patient’s best interests, there is evidence of abuse or conflicts of interest, or the patient’s circumstances change.
When revoking a healthcare proxy, the doctor should reassess and document the patient’s capacity, notify the patient and agent, and revise medical orders and team communication. It’s also helpful to note whether reassessments are likely to be necessary in the future.
The intricacies of healthcare proxies are confusing enough for healthcare professionals – imagine how the average patient must feel. Healthcare providers can help by explaining healthcare proxies in plain language and providing useful resources, such as toolkits and pamphlets.
In addition to seeking out state-specific resources, the following may be helpful: Above all, clear communication, thorough documentation, adherence to state law, and consulting with legal professionals when needed are critical when navigating issues related to healthcare proxies.
This article is based on a Coverys presentation “Understanding Healthcare Proxies: Key Questions for Physicians” by Mary Ryan-Kusiak, Risk Consultant, and Annemarie Provencher, Senior Risk Specialist.
What Is a Healthcare Proxy?
For end-of-life care and incapacity planning, individuals have several legal tools they can use to ensure their wishes are carried out. The most common are:
- An advance directive is any legal document that indicates what individuals want for their future medical care if they become incapacitated. This may take different forms, such as a do-not-resuscitate order, living will, or healthcare proxy.
- A healthcare proxy allows a person to designate their surrogate decision-maker who is authorized to make medical decisions on behalf of another person.
- A living will is a legal document that expresses a person’s wishes for future end-of-life healthcare treatments and life-sustaining measures.
Furthermore, the holder of durable power of attorney is authorized to make financial decisions on behalf of another. A single person may serve as both a healthcare proxy and have durable power of attorney, but these two roles are separate. Having a durable power of attorney does not necessarily equate to an automatic authority to make medical decisions.
Patients should ensure that they have the appropriate forms to reflect their wishes and that these forms have been signed and witnessed in accordance with the applicable state law. Healthcare providers should understand these laws in the states where they practice, read the applicable forms and documents carefully, and consult with legal counsel when necessary.
Healthcare Proxy FAQs
When does a healthcare proxy become effective? A healthcare proxy only goes into effect when an individual loses capacity, and it is revoked when (or if) the patient recovers. As with many aspects of healthcare, this varies with state law.
Can a physician witness a healthcare proxy? Whether this is allowed depends on state law. Some states may require documents to be notarized. In addition to following state law, it’s advisable to select witnesses who are not directly involved in the patient’s care to avoid ethical concerns.
What happens if the physician cannot reach the healthcare proxy? The physician should thoroughly document repeated attempts to reach the proxy. In addition to reaching out by phone, it may be prudent to reach out by U.S. mail with confirmation of receipt, if there is time.
What happens if there is no healthcare proxy? In some cases, a patient may not have a proxy or the only named proxy may be unavailable. State law will then determine who has authority to make decisions. This may be the spouse, adult children, parents, guardian, or siblings. When the authority is shared – for example, by two adult children – a joint decision may be necessary.
What happens if a patient refuses care that a healthcare proxy authorizes? In these instances, it is important to consult with your legal counsel. The complicated nature of this situation may make it necessary to file a petition and involve a judge.
Can a healthcare proxy access the patient’s protected health information (PHI)? Once a proxy has been invoked, the proxy can access PHI to make informed decisions under HIPAA. However, the patient may still have the right to refuse to share certain sensitive information, such as information about substance use. If there are concerns, consult with legal experts.
Determining Capacity
Determining capacity is an essential part of using healthcare proxies. Capacity is also critical for informed consent, as only adults with decision-making capacity can provide informed consent.
State law dictates who has the authority to make a capacity determination. For example, under Massachusetts state law, the patient’s attending physician must make the determination. As the law is currently written in Massachusetts, other healthcare providers – such as PAs and NPs – do not have the authority to make this determination.
To determine whether a patient has capacity, healthcare providers need to understand what capacity means. As Vermont Ethics Network explains, capacity is not the same as competence. Competence is a legal term used to determine whether a person has authority to make decisions. Furthermore, only judges can rule on whether someone is legally competent. Capacity, on the other hand, is a clinical determination that assesses whether patients can:
- Understand relevant information.
- Appreciate their medical situation and its possible consequences.
- Reason through the risks, benefits, and alternatives of their treatment options.
- Communicate their choice, based on their own values, freely and voluntarily.
Documenting Capacity
When a physician determines capacity and invokes or revokes a healthcare proxy’s authority, it’s important to follow state law to the letter, adhere to standardized procedures, and document the process thoroughly.
The first step typically involves conducting a capacity assessment. This should be carried out in a standardized manner. A validated clinical tool, such as the MacArthur Competence Assessment Tool-Treatment (MacCAT-T), is ideal for providing a framework.
Revocation of the healthcare proxy may occur in a number of ways, including by court order or upon the death of the patient. Patients can also revoke a healthcare proxy, as long as they have the mental capacity to do so. In fact, doctors may encourage a revocation of healthcare proxy if a patient regains capacity. The doctor may also advocate for revocation if the proxy is not acting in the patient’s best interests, there is evidence of abuse or conflicts of interest, or the patient’s circumstances change.
When revoking a healthcare proxy, the doctor should reassess and document the patient’s capacity, notify the patient and agent, and revise medical orders and team communication. It’s also helpful to note whether reassessments are likely to be necessary in the future.
Helping Patients Navigate Healthcare Proxies
The intricacies of healthcare proxies are confusing enough for healthcare professionals – imagine how the average patient must feel. Healthcare providers can help by explaining healthcare proxies in plain language and providing useful resources, such as toolkits and pamphlets.
In addition to seeking out state-specific resources, the following may be helpful: Above all, clear communication, thorough documentation, adherence to state law, and consulting with legal professionals when needed are critical when navigating issues related to healthcare proxies.
This article is based on a Coverys presentation “Understanding Healthcare Proxies: Key Questions for Physicians” by Mary Ryan-Kusiak, Risk Consultant, and Annemarie Provencher, Senior Risk Specialist.
Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.