“Putting both siblings, who often disagreed in their lives, on equal footing in the healthcare directive, was asking for trouble.” Carolyn Rosenblatt, Esq.
As Final Exit Network’s Surrogate Consultant, people often ask me about the wisdom of naming two people as co-surrogates in their advance directive. There are many reasons why this is not a good idea, even though people are confident their children would be perfect candidates in the co-surrogate roles.
The first question to ask is, can you legally choose more than one surrogate? You are always free to choose one surrogate, and in some states, you are allowed to pick more than one, such as choosing your two children or your spouse and child as co-surrogates. However, I caution you to check your individual state because there may be a prohibition against choosing more than one surrogate or power-of-attorney for healthcare. The laws in each state vary, so make sure it’s even possible before you set yourself up for a problem that legally should not exist. For example, in Massachusetts, the law states, “Every competent adult shall have the right to appoint a healthcare agent by executing a healthcare proxy.” Most legal professionals interpret that wording to mean you can only appoint a single person.
You can, however, name any number of alternate healthcare agents, but again, in many states, you can only have one primary surrogate.
If you get past that hurdle, understand that medical practitioners prefer ONE person making your healthcare decisions. Staff wants one decision-maker because it’s more efficient in an emergency. The other reason is that if two people are in charge, there is always room for disagreement, and they could give conflicting medical instructions. It gets too confusing and cumbersome when medical staff has to track down and consult with two or more people, even if the surrogates are on the same page regarding treatment.
Medical teams need answers and don’t have time to locate two or more surrogates or wade through family disputes.
People often fear that if they don’t name both or all their children as their surrogates, one or more of them will be disappointed or hurt. It is more likely that while your children love you, they would rather not make life-or-death decisions for you. It would be better to have that conversation with them long before anyone is called upon to follow your Advance Directive and be uncomfortable or reluctant to act.
It would be best if you had an alternate, and you could certainly have the second child in that role. If they are close sibs, they can collaborate and be in on all conversations with you, so there is no question about what you want if, for some reason, #1 is not available, and #2 has to step in. They may want to talk between themselves and decide who they think is the best choice as the primary advocate.
The most important goal is to choose a strong surrogate who will carry out your wishes.
Here are some traits to look for when selecting an effective surrogate.
If you have a hard time deciding which person to choose, there is a helpful tool from the American Bar Association. It lists the qualifications of a suitable surrogate, and you can compare the two or three people you are considering and see how they measure up. You may find some surprising answers in weighing your potential choices, but it should help you winnow out the less qualified candidates.
Another question to consider about appointing your children as surrogates: Is one better equipped emotionally, more reliable, or more medically knowledgeable?
If I had to choose between a son who is an artist and a daughter who is a nurse, I would go with the nurse every time. I would put the artistic son in charge of writing my eulogy or planning an incredible Celebration of Life after I am gone. I think most people would.
In an article published in AgingCare.com, Attorney Carolyn Rosenblatt explained why having one surrogate is best and how to choose. She described her two children and said that all other things being equal, one was always late, so she decided to appoint the always on-time and more reliable child – it had nothing to do with favoritism. She reasoned, “If a doctor wanted to call a meeting at 2 p.m. to discuss what to do about me in a coma, I’d want the decision-maker to show up on time.”
The proverb that “two heads are better than one” does not apply here because most professionals think having more than one healthcare surrogate is a bad idea. In fact, I have not read anything that suggests otherwise. When you are incapacitated, the last thing you need is a debate about treatment options among your surrogates or loved ones.
The best practice is to choose two people, but name one as the primary and the other as the alternate. This process will help ensure that one or the other (not both together) will carry out your treatment goals. This choice will help ensure that your end-of-life wishes are honored without unnecessary bedside conflict or confusion.
Althea Halchuck, EJD, CT, BCPA
March 6, 2022