Making Health Care Decisions For Others

MAKING DECISIONS FOR AN INCAPACITATED PERSON

When a person is mentally incapacitated because of illness, disease, mental illness or a developmental disability, others must make major decisions for them. This task usually falls to the person’s family members or friends. It can be very difficult to decide what the person would want, especially in the area of medical care. However, Maryland law encourages family members or friends to make major decisions for an incapacitated person. Described below are some decisions others can make and the consequences of becoming a decision-maker for another person.

MEDICAL DECISIONS

The Health Care Decisions Act allows family and friends to make medical decisions for someone who is unable to decide for himself or herself. The Act recognizes that close relatives or friends have the patient’s best interest at heart and, with the patient’s doctor, will make the best decision for the patient.

After two doctors certify that a patient is unable to make a health care decision, the doctors will ask whether the patient has named a health care agent in a health care advance directive. If the patient has done this, that agent would make all subsequent decisions. If there is no appointed agent, the doctors will look to the closest relative or friend to make health care decisions. This person is called a surrogate.

Surrogates may act in the following order of priority: 1) a legally appointed guardian, 2) a spouse, 3) an adult child, 4) a parent, 5) an adult sibling, and 6) a close relative or friend.

Types of Decisions
The surrogate may make all but a few medical decisions for the patient, including routine decisions about daily care as well as decisions about end-of-life treatment. The surrogate should consult with the patient’s doctors and should make decisions based on what the patient would have wanted, if the patient’s wishes are known. If their wishes are not known, then the surrogate should decide based on the patient’s best interest. It is usually not necessary for the surrogate to get court permission to make any decision. However, the surrogate may not authorize treatment if the patient is actively refusing it. The surrogate may not authorize treatment for a mental disorder or sterilization.

Liability
A surrogate is not responsible for any of the patient’s medical costs simply because the surrogate is making medical decisions, nor is the surrogate liable for the consequences of any decision he or she makes. The law protects surrogates from liability for any errors in judgment.

STANDARDS FOR SURROGATES

Substitute Judgment

When making health care decisions for another person, the surrogate should consider what health care the person would have wanted. The surrogate should consider:

1. the person’s current diagnosis and prognosis;
2. the person’s expressed preference regarding the treatment being considered;
3. the person’s attitude toward similar treatment for another person;
4. the person’s behavior and attitude toward medical treatment in general;
5. the person’s expressed concerns about the effects of his or her illness and treatment on family and friends; and
6. the person’s religious and personal beliefs.

Best Interest
If it is possible to know what the person would have wanted, the surrogate should base the decision on the person’s best interest, considering:

1. the treatment’s effects on the physical, emotional and mental functions of the person, and the treatment’s risks, benefits and side effects;
2. the physical pain the person would suffer with and without treatment;
3. the effect of the treatment on the person’s life expectancy and the person’s potential for recovery;
4. the humiliation, loss of dignity and dependency the person is suffering; and
5. the religious beliefs and values of the person.

NURSING HOME ADMISSIONS

In most cases, a relative or friend may sign a person into a nursing home without being a guardian or having a power of attorney. Nursing homes have special contracts for a relative or friend who is admitting a person into a nursing home. The person signing the contract should read it carefully to be sure that it states clearly that s/he is agreeing to pay from the patient’s funds only. The signer should be certain s/he is not agreeing to pay the patient’s bill form the signer’s assets.

A family member or friend can also apply for Medical Assistance and other benefits for a person without being a guardian or an agent.

GUARDIANSHIP

Guardianship is a legal proceeding in which a person asks the court to appoint a guardian to handle the affairs of an incapacitated person. The law requires that guardianship be used only if there is no other alternative; it should be used as a last resort. Guardianship is necessary if the incapacitated person has money or property in his/her own name that must be accessed or sold. It is necessary if a person has no relative or friend to make health care decisions for him or her or if the person is refusing care. It is not necessary to file for guardianship if there is a person willing to make health care decisions for an incapacitated person, and that is the only problem to be solved.

(A PDF version of the above Sample Statement is included for your use)



Written by Joan O’Sullivan, JD
University of Maryland School of Law
June, 1999