Choosing a Health Care Agent

The health care agent must be an adult. Individuals should choose a person they trust to protect their wishes and interests.

An operator, administrator or employee of a general hospital, nursing home, mental hygiene facility or hospice may not serve as agent for any person who is a patient at the facility, unless the patient is related to the person they wish to appoint, or the patient created the proxy before being admitted to, or applying for admission to, the facility.

Physicians are the only exception to this rule. A patient can appoint his or her physician as agent, but the physician cannot serve as both the agent and the attending physician of a patient after the agent's decision-making authority begins. Any physician who has been appointed as a patient's agent cannot determine the patient's capacity to make health care decisions.

Each person can appoint only one agent, but individuals may name an alternate agent. The alternate serves in place of the agent if one of three circumstances occurs.

  • The attending physician determines that the agent is not reasonably available, willing and competent to serve, and is not expected to become so in a manner that will permit him or her to make a timely decision given the patient's medical circumstances. This determination must be in writing and signed by the physician.
  • A court disqualifies the agent from serving.
  • Conditions described by the patient in the proxy occur. For example, the patient could specify that the alternate will serve if the agent moves out of state.

If the person appointed as the original agent becomes available to serve after an alternate agent has begun to make health care decisions, the alternate's authority ends, and the original agent's authority begins. The attending physician must record this change of agent, and the reasons for the change, in the patients medical record.