Written by: Gerilynn Falasco, Esq.
Losing a loved one can be one of the most emotionally exhausting experiences in life; at least it was for me. It can be especially difficult when that loved one has struggled with a chronic illness or has been diagnosed with a life-threatening or terminal condition. As an estate planning attorney, I am all too familiar with this experience, having served as my mother’s health care agent.
My mother was first diagnosed with breast cancer in 1994 when I was a senior in high school. She was just 40 years old. Unfortunately, she was re-diagnosed with stage 4 breast cancer in November 2009. My mother was very faithful and never wanted to know what any doctors had to say about her life expectancy. She was also very practical, though, and understood her diagnosis and wanted to plan.
In 2015, she executed a Health Care Proxy, Power of Attorney, and Last Will and Testament. During that time, she went to her doctor appointments and to her treatments. If no one could go with her, she went by herself. She made sure a copy of her Health Care Proxy was on file with her doctors. She stayed in relatively good health until 2019 when everything began to deteriorate. My siblings and I were listed as her Health Care Agents. We were responsible for advocating for her during her hospital stays, speaking with her doctors about her treatment plan, and making decisions about her care during surgeries, procedures and treatments.
As a Health Care Agent, the responsibility could have included having to make split-second decisions during surgery. Luckily for us, we never had that experience, but we were always ready. She was constantly in and out of the hospital during the COVID-19 Pandemic, and I would frequently have to push to speak with the attending physicians about her current issues and the plans going forward because they would round during the day while visitors were only allowed from 3:00-6:00 p.m.
Being strong and advocating for the patient is so important. Eventually, it came time to speak with her doctors about her prognosis and make formal plans for the future. As her cancer progressed, we had to make difficult decisions about her care, including advising her about the availability of hospice care. Each of the treating doctors had recommended hospice care. After a family discussion, I requested a palliative care consultation for her. The physicians who practice in palliative care are wonderful. My mother loved her doctor. I remember my first conversation with the palliative care doctor as well and she was very practical while still managing to be comforting. When the doctor was present in the room, she called me on my cellphone so my mother could hear me, and I explained the recommendation for hospice. My mother knew what that meant, having had a hospice experience with her own mother many years ago. It was a difficult discussion to have for sure, but one I could never have been equipped to have but for the authority to be able to make the inquiries that my mother never wanted to make. I was able to do that as her Health Care Agent. I was able to learn about how her health was likely to continue to deteriorate and how that may impact her quality of life. She wanted maximum pain relief. We had it put expressly into her Health Care Proxy. I honored my mother’s wishes but that did not mean it was easy or went smoothly. I had to enforce my mother's wishes with family members who disagreed with the treatment plan she had put in place.
Being a Health Care Agent is not an easy role to take on. However, it is an important one, and it is something that everyone should consider, no matter how difficult it may seem. A Health Care Proxy is a legal document that allows someone else to make health care decisions for you if you are unable to do so yourself. It was challenging, being a health care agent for my mother, but it was also an honor to be able to fulfill her wishes and ensure that she received the care she wanted up to her final moments.
As an estate planning attorney, I cannot stress enough how important it is to have an end-of-life plan. A Health Care Proxy is important not only for sick individuals but for anyone, even for those 18 years or older.
In New York State, the Public Health law does set forth a hierarchy for medical professionals to designate a health care agent in the absence of an executed Health Care Proxy. However, we never know where we may be hurt or hospitalized. For example, if high school graduates decide to attend college outside of New York State, parents may encounter issues getting information about their hospitalized child without an executed Health Care Proxy. By executing a Health Care Proxy, your chosen Agent has the authority to handle your care versus who the State says your Agent should be.
While some may be uncomfortable discussing death or the end of their lives, it is essential to discuss your wishes with your family and your potential Health Care Agent(s). These conversations may strengthen the resolve of your Agent(s) to advocate for your wishes which may provide them with solace after making a difficult decision. The conversations may also help your family members cope with your loss by knowing they fulfilled your wishes.
Serving as my mother's Health Care Agent was a difficult experience, but one that I will always cherish. It allowed me to be her voice and to make sure that her wishes were carried out as she wanted.
In the end, she passed away during a blizzard, while my two siblings and I were in her living room, laughing at her favorite shows and eating dinner. It is exactly what she had wanted and my siblings and I could not have scripted it better.