Healthcare Surrogates and Directives

End of life decisions can be difficult for most anyone, but infusing family dynamics can make the process that much more difficult.  Proper Health Care Directives can often help to circumvent any misunderstandings in the future.

A patient with capacity has a right to make his or her own medical decisions, including whether life-sustaining procedures should be used.  It is important to remember that a patient can be competent to make healthcare decisions despite suffering from a mental illness.

Healthcare Directives

Healthcare Directives allow for adults who have decision-making capacity to deal with future care issues by one of three methods:

1)  Written Instructions – Also known as a living will.

2) An agent – Also known as a proxy or durable power of attorney for health care.  A healthcare agent has authority to make a decision about life-sustaining procedures.  The agent is to make a decision consistent with the patient’s wishes or what is in the patient’s best interest, if wishes are unknown.  If more than one agent is designated in the healthcare directive, and those agents do not agree on a medical decision, the matter can be referred to Patient Advisory Committee (Ethics Committee).

3) Oral instruction – Must be made to the proper medical staff, witnessed and documented in the patient file.

Patients can revoke healthcare directives at any time and there is a strong presumption of competency when a person tries to revoke a healthcare directive.

Healthcare Surrogates

If a patient has not designated a healthcare agent, the court has not appointed a Guardian, and the person can no longer make healthcare decisions (as determined by 2 physicians) a surrogate has the authority to make the decision.  There is presumption of consent to treatment in an emergency.  Surrogates are asked to make ONE decision (i.e. will you consent to this surgery or can we transfer the person from a hospital to a nursing home).  Surrogates are not making health care decisions on an ongoing basis.

Individuals asked to make surrogate decisions are placed in a particular class and may be consulted only if the next higher in unavailable:

1)  The person’s guardian

2)  Spouse/Domestic Partner

3)  Adult child

4)  Parent

5)  Adult sibling

6)  Friend/Relative

Surrogate decision making is not valid if the patient has expressed disagreement about the treatment, even if the patient did not have capacity when expressing such disagreement.

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***