Designation of Health Care Surrogate

David: [00:00:00] Hello, I’m David Shulman of the law firm of Ginsburg Shulman with my partner Jill Ginsburg. We focus in estate planning, elder law, probate, trust administration, and guardianship. And today we’re talking about one of the focal documents in your advanced directives, and that is a healthcare surrogate or a designation of healthcare surrogate.

Jill, what is a designation of healthcare surrogate?

Jill: Designation of healthcare surrogate is basically a document that allows you to designate somebody to make healthcare decisions on your behalf. Now, a lot of people say to me, but I’m alive, I can make my own healthcare decisions. Yes, this document does not overrule your decision.

And that’s the one thing that most people have to understand. It doesn’t overrule your decision. What it does do is it allows people to act when you can’t make that decision.

David: And what are some circumstances in which someone can’t make decisions? I mean, everyone [00:01:00] thinks of the obvious is I’m in a coma and there’s no life signs whatsoever.

But that’s not really what we’re talking about.

Jill: That’s actually one of the least things. There are so many things that happen. You’re in knee surgery, that’s a pretty common thing, and all of a sudden something happens and you need more anesthesia. Who’s going to make that decision for you if you don’t have someone to make it for you?

There’s so many other, I mean, you’re in some kind of surgery, the surgery goes south, the doctor needs to redirect and do another type of surgery. Who makes that decision when you’re under? I can go on and on and on with instances that happen in this particular situation, but if you had a, excuse me, if you had a healthcare surrogate, then you wouldn’t have that problem because you had designated somebody to make those decisions for you.

David: And who are good people to appoint to be your healthcare surrogate?

Jill: That’s probably one of the best questions. You know, a lot of people worry a lot about their durable power of [00:02:00] attorney and their finances and who to appoint. But I think the more important person is the person who’s making your health care decisions for you, because that’s actually the person who’s keeping you alive.

People who are not excitable, people who are calm, people have a good demeanor, and a good thought. People have common sense. These are the people, and it’s not always easy. Sometimes you’ll have to designate a family member who you don’t want to designate, but that’s your next of kin, and that’s the, you know, the only person you have.

But if you do have the choice, it’s really somebody who can take a step back and think in a situation where there is an emergency.

David: And it doesn’t necessarily have to be a family member.

Jill: Not at all. In fact, and my friend knows this. I have one of my closest friends who is in there as one of my healthcare surrogates.

So she can be there to be the voice of reason because I know there’s certain family members that would yank that plug out so fast and, no offense to them, because I understand, but there’s also people who are, you know, people with [00:03:00] reason in there. It could be a family member, it could be a friend, it could be a neighbor, it could be anybody who can make a good decision.

David: Well, a designation of health care surrogate is important for everyone. It’s especially important for unmarried people because spouses have certain rights. But when we’re living in a society where more and more people are not married, then there really has to be someone to step in to make those decisions if you’re unable to make them for yourself.

Jill: Absolutely. There’s a lot of cases where the hospital or the doctor will not even talk to you without having a health care surrogate. I know in a lot of instances I’m allowed access right away because I have health care surrogate in a good deal of instances, but yet there are people who are family members who are not allowed in because they’re not on that document.

So, yes, it’s extremely important. That somebody is appointed and has that so that somebody can make a decision and especially in a non married couple situation. You’re [00:04:00] right. David. It’s so important to have that document because they’re not going to allow the other person in or to make decisions. If it’s not there.

David: And let’s say, you have a designation of health care surrogate, and then you no longer like that person, you no longer trust that person. It’s not written in stone, right?

Jill: No, you can revoke it. I mean, obviously there’s several different ways to revoke it, but you know, you can name another person. You can draft an entirely new document revoking that document.

There’s a lot of different ways that, that, and obviously people die. So once that person passes away, they’re obviously no longer able to be your surrogate.

David: Got it. And without a designation of healthcare surrogate, the alternative, unfortunately, is a guardianship, which we’ve spoken about before.

Jill: In most instances, there’s some instances where a proxy can be used, and that’s a whole nother conversation, but in almost all instances, you’re going to need a guardianship.

David: So, we spoke about a power of attorney before. Today, we’re talking about a [00:05:00] healthcare surrogate. These are both very important documents that someone should have in order to prevent a guardianship, which could be onerous to everyone involved.

Jill: Oh, yeah. I mean, obviously, you know, like I tell everybody, you’re better off to plan.

I like when you control your own destiny, which is why you should go see my law partner and go have your documents drafted as opposed to coming to see me to have a guardianship done. Great. Thanks a lot.