Florida Elder Law & Estate Planning Blog


Considerations Before (And After) You Agree to Serve as Health Care Surrogate

July 24, 2017
Health Care Surrogate

Consider yourself fortunate if you have been asked to serve as someone’s health care surrogate, for you get to decide if you’ll accept the job. Astonishingly, many people name a surrogate without ever asking or informing the person they select! The first the surrogate ever hears of his/her responsibilities is when a doctor calls to discuss an incapacitated loved one’s medical treatment.

To Serve or Not to Serve?

Assuming you have been asked to serve, should you? If a parent or other close relative asks, you will probably want to agree, but you should first understand the breadth of your potential responsibilities. Do not assume, as so many do, that your services probably won’t be needed. Once you sign on as someone’s health care surrogate, there is no way to know if or when you will be called on to make difficult, even gut-wrenching health decisions. So before you say yes, consider the following:

Do you have the temperament to serve? I know a man who loved his elderly mother dearly. At the same time, he had zero tolerance for medical matters. The sights and sounds of hospitals made him so anxious that when his mother was hospitalized at the end of her life, he never visited. Fortunately, it was not he, but his less squeamish brother, who served as health care surrogate.

Can you honor your loved one’s wishes even if they don’t align with your personal beliefs? I know of one situation in which a family friend fell into a vegetative state and was being tube-fed and kept on a respirator. He had appointed his son as his health care surrogate decades earlier, but in recent years the son had become involved with a religious movement that opposes discontinuing any life-sustaining measures. This put the son’s values in direct conflict with his father’s living will. The matter ended up in the hospital’s medical ethics department, with the surrogate and his sibling arguing back and forth. The father died before the issue was resolved, but to this day the episode casts a shadow over the siblings’ relationship.

Are you geographically near your loved one? It is possible to confer with health care providers by phone or email, of course. You can also hire a geriatric care manager to handle the situation. But you will probably feel more comfortable making decisions if you can observe your loved one in person, and talk face-to-face with medical staff.

Are you up to dealing with the medical bureaucracy? Sometimes this can be a full-time job in its own right! Do you have the time and the patience to do it?

What Are The Duties of a Health Care Surrogate?

The health care surrogate’s potential duties are broader in scope than most people realize. Among the issues you may be asked to resolve are:

Approving various medical treatments, medications, diagnostic tests.

Deciding on where medical treatment will be received – which hospital, rehab facility, nursing home, Hospice, etc.

Securing second opinions, if necessary.

Dealing with Medicare and other insurance carriers.

Deciding about end-of-life procedures.

Requesting and approving release of medical records as appropriate.

Communicating with your loved one’s other family members.


Prepare to Be an Effective Health Care Surrogate

Once you agree to serve as someone’s health care surrogate, it behooves you to become familiar with that person’s wishes, values, and legal documents. Both you and your loved one will be more comfortable knowing you are on the same page. You should:

Talk to your loved one at length about his/her wishes. Discussing purely hypothetical situations can be unproductive. Instead, try discussing specific, high-profile cases – Teri Schiavo, for example – and find out what your loved one would want if he/she is in a similar situation. Be very specific about end-of-life interventions: Ventilator? Tube feeding? Palliative care? Does your loved one prefer to finish out his/her days at home? Under what conditions?

Ask for a copy of the health care surrogate and the living will. Ask questions about all the health care documents if you need clarification, and ask your loved one to provide you with updates whenever those documents are modified. Make sure the health care document has a HIPAAwaiver. Also, it’s usually best if the document names one main surrogate, and then successors, for situations in which the named surrogate cannot serve. Asking two or more agents to agree on any course of action can set the stage for family friction, and can be a logistical nightmare, as well.

Find out your loved one’s health history. Does he/she have any chronic conditions? What medications does he/she take? Who are his/her doctors?

What are your loved one’s religious and spiritual values? Is there a clergy person he/she would like you to consult if you are unsure about your decisions?

Determine if you or someone else is the person’s agent under the durable power of attorney for property. If it’s someone else, understand that that person will be able to approve or deny payment for any health-related services you deem necessary. I am familiar with one case in which a health care surrogate wanted to bring in a nurse’s aide for a few hours a week to help manage medications for her mother, who was in the early stages of Alzheimer’s. However, the agent under the mother’s durable power of attorney refused to release funds, saying it wasn’t necessary. A power struggle ensued, with the surrogate claiming the agent was more concerned about money than their mother, and the agent saying money had to be conserved for when their mother’s situation grew even more dire. To avoid this kind of battle, you, your loved one and the agent under the durable power of attorney should talk, and reach at least a general understanding of what will and won’t be paid for.