How to Choose a Health Care Proxy for a Loved One with Dementia

When helping a loved one with dementia, you may face many difficult choices. Often, a person with dementia needs medical care and possibly assisted living or nursing home care.

This prompts several questions:

• Who will decide what kind of care they receive, or where they will be treated?
• Where will your loved one live when they are no longer able to live alone?
• Who will pay for these care services or manage your relative’s finances?
• What if they don’t have the resources to pay for long-term care?
• What if someone needs to make healthcare decisions for your loved one in an emergency?
• How can you ensure your family member’s wishes for end-of-life care are respected?
• What if other family members disagree about your relative’s medical decisions?

At Van Dyck Law Group, we understand that these concerns can be stressful and the situation confusing. Our team of legal professionals is here to support you, answering your questions and recommending the best options tailored to your specific situation.

When you need a Dementia planning lawyer in New Jersey, choose Van Dyck Law Group.

What Is a Health Care Proxy?

One essential decision to make is who should handle these decisions if your loved one can’t. This person is called a health care proxy.

A health care proxy, sometimes referred to as an agent or representative, is someone authorized to make medical decisions on your behalf if you become unable to express your wishes. This person collaborates with your doctors and care providers to make sure your treatment choices are honored.

Designating a proxy can be especially important in case an emergency occurs, such as a sudden stroke or a severe auto accident that leaves a person unable to speak for themselves.

How Do You Designate a Health Care Proxy?

A health care proxy or agent is named in an advance directive or durable power of attorney for healthcare. These documents can also be used to state what healthcare measures you do or don’t want, and the healthcare proxy form only becomes effective if you are unable to make your own decisions.

This can be a cause for concern if you are assisting a family member with dementia. Can they choose their own health care proxy?

The answer is yes, provided they can still understand the decision they’re making and its consequences. In most cases, this means that they are aware of what’s going on and the potential impact of the document they are about to sign.

How Do You Determine if a Loved One Is Incapacitated?

Simply suffering from memory difficulties or other symptoms of dementia does not necessarily mean a person is incapacitated. Many people are still able to make their own decisions in the early stages of dementia.

For this reason, your lawyer may recommend a medical exam to determine if your relative currently has capacity. If so, they can choose an agent and, ideally, a backup agent in case the first person is unable to serve in this role.

When you and your loved one are ready, your estate planning attorney can help you prepare the documents to name a healthcare proxy.

What if Your Loved One is No Longer Able to Make Decisions?

If your family member is currently incapacitated, they won’t be able to designate a proxy or sign any legal documents. Instead, you or another relative can go to court and ask to establish a guardianship or conservatorship for your loved one.

A guardianship is similar to a healthcare proxy in that it allows the “guardian” to make medical decisions on behalf of the incapacitated person. The guardian may also be responsible for handling this person’s financial decisions.

How to Choose a Health Care Agent

This can be a difficult decision, and you should give it careful thought. Here are some essential qualifications you should look for in the person who will be your or your loved one’s health care proxy:

• They should have a strong understanding of your values and preferences. You’ll need to explain to your healthcare proxy what kind of treatment you want, and you should be able to trust that they will carry out these wishes.
• They should remain composed under pressure or in emergency situations. Someone who easily becomes overwhelmed with stress may not be the best choice for this task.
• The health care agent should be able to speak up, ask important questions, and advocate for your care, even in challenging situations. Ideally, you want someone assertive enough to carry out your wishes but capable of listening to others and understanding the situation.
• Your agent should be able to clearly explain decisions and provide support to your loved ones. They may need to give difficult news to others in your family or deal with relatives who aren’t happy with their decisions.

Many people choose a friend or family member, but in some cases, this may not be an option. You can choose a professional to act as your health care agent, but in general, you should avoid selecting someone from the following list:

• Your doctor or healthcare provider, or anyone who works in their office.
• An owner or employer of your nursing home, group home, or other residential facility.
• A doctor, healthcare worker, social worker, or anyone else whose job involves determining your or your loved one’s ability to make decisions.
• Anyone who serves as a health care proxy for multiple people.
• Your family member’s guardian or conservator.

The first three situations are problematic because, in some cases, they could involve a conflict of interest. The fourth concern is that someone serving as a health care agent for multiple people may be busy or distracted.

In some situations, they may also prey on vulnerable people for personal or financial gain.

The last one can be a complex situation. Generally, guardians are authorized to make medical decisions on behalf of an incapacitated person and don’t need to appoint a healthcare proxy.

However, if the incapacitated person previously chose a health care proxy, the guardian or conservator may need to defer to them. When there is a conflict involving a family member who makes medical decisions for an incapacitated person, it is often decided in court.

When this happens, a judge may choose to void a previous healthcare proxy or allow it to stand. If you have concerns about an existing healthcare agent, we recommend discussing them with your attorney before beginning the process of seeking guardianship.

For instance, if you believe your relative was not of sound mind when they chose a health care proxy, your lawyer can ask the judge to void this decision. However, if the judge finds that the existing proxy decision is valid, the agent will have the ability to make medical decisions. You may still be able to pursue a conservatorship to manage the incapacitated person’s finances.

What if You Can’t Find a Suitable Health Care Agent for Your Loved One?

This is a situation that sometimes comes up when we are assisting a family with an incapacitated family member. For example, the client might say something like this:

“I know my great-aunt needs someone to handle her medical decisions now that she has dementia, but she has no other family, and I just can’t do it. I live in another state, work two jobs, and I’m a single parent to my kids. As much as I want to, I just don’t have the time or energy, and I can’t think of anyone else who can help. What can I do?”

In such situations, it is possible to engage a professional as a guardian. If the incapacitated person can afford it, the guardian will be paid out of their funds. When the incapacitated person has limited resources, the court can appoint a public guardian, typically from a state-funded agency.

Health Care Proxy vs. Power of Attorney

Sometimes, people ask about the difference between a Power of Attorney and a health care proxy. A healthcare or medical power of attorney generally grants broader authority, allowing the appointed person to handle a variety of medical decisions and, in some cases, related legal or financial matters—such as interpreting your living will with physicians or overseeing certain healthcare expenses.

It is activated when a person is unable to make their own medical decisions.

As with a health care proxy, your power of attorney should be someone you trust to make calm, rational decisions and act in your best interests. You can choose the same person for both medical and financial power of attorney, but some people prefer to select different people for these duties.

On the other hand, a healthcare proxy is usually limited to medical decision-making authority, without the extended ability to manage legal or financial concerns tied to your care. It becomes active specifically when a person is incapacitated.

Your estate planning attorney can advise you on which of these options better fits your situation.

What Else Should You Consider When Setting Up a Healthcare Proxy?

Your elder care attorney can assist you with a healthcare proxy or durable medical power of attorney, but at the same time, we’ll advise you on other advance care planning decisions you need to make.

These may include:

• Funding your healthcare and long-term care
• Applying for Medicaid, Supplemental Security Income (SSI), and other assistance programs if needed
• Creating a will
• In some cases, setting up a trust to preserve assets
• Creating a durable power of attorney for financial and legal matters

We want to ensure your estate plan covers all your concerns and wishes, so we’ll walk you through each step, answer your questions, and assist you with moving forward.

We’ll also advise you to speak with the person you choose to be your healthcare proxy and explain your wishes for healthcare in general, and end-of-life care in particular. They must understand your wishes so they won’t have to wonder what you would want when the time comes.

Health Care Proxy FAQ

What if You Believe a Health Care Agent, Guardian, or Power of Attorney is Not Acting in Your Loved One’s Best Interests?

This can be another challenging situation. Sometimes, clients tell us they believe an agent, guardian, or power of attorney is taking advantage of their loved one, or even abusing or neglecting them.

In other cases, they might think the health care proxy is simply not making the decisions their family member would want. Or, they may become concerned because the agent has prevented them from visiting or communicating with their loved one.

If one of these situations sounds familiar, we urge you to speak with an elder law attorney immediately, and we’ll review the situation and determine if there is any evidence of misappropriation or abuse. If so, we can petition the court to remove this person from the situation and appoint another guardian to make decisions.

Can a Healthcare Proxy Override the Patient?

In most situations, patients make their own medical decisions unless they are unable to do so. If you or your loved one can decide for yourself, the healthcare proxy can’t override you.

However, if you or your family member has an advanced form of dementia and no longer has capacity, the healthcare proxy can override the patient’s decision. In this situation, you may need to speak with your lawyer about determining capacity, which usually requires a medical exam.

Get Help With Healthcare Proxy Forms and Other Legal Needs for Dementia With Van Dyck Law Group

If you or a loved one is navigating the challenges of Alzheimer’s and dementia planning and needs guidance on legal or estate planning, the Van Dyck Law Group is here to help. Our knowledgeable elder law attorneys are available to walk you through your options, provide clear answers to your questions, and prepare the necessary legal documents once you’ve made your decisions.

We understand how overwhelming a dementia diagnosis can be, and we’re committed to supporting you with care and clarity every step of the way.