Health Care Agent Overruled By Temporary Guardian


Elma Mason, a 77-year-old Massachusetts woman, suffered from congestive heart failure, anemia, diabetes, pulmonary hypertension and mild dementia. She was being treated in Massachusetts General Hospital, and her treatment team agreed that she should not be treated aggressively in the event of cardiopulmonary arrest.

Ms. Mason’s son Joseph was actively involved in his mother’s care. In fact, in the view of the hospital, he was too actively involved. Hospital personnel complained that Joseph had disrupted the hospital’s schedule, abused the staff and repeatedly claimed that the staff had neglected and mistreated his mother. The hospital sought to have a disinterested person appointed as guardian for Ms. Mason.

After the appointment of the hospital’s nominee on a temporary basis, the new guardian consented to entry of a “do not resuscitate” order for Ms. Mason. Joseph appealed the guardian’s decision, and produced three different documents, apparently signed by Ms. Mason, naming Joseph as the person to make medical (as well as financial) decisions for her. Joseph argued that the temporary guardian should have no power to make medical decisions in the face of the medical powers of attorney.

The Massachusetts Court of Appeals agreed that the guardian could be permitted to place the “do not resuscitate” order. The court specifically found that the evidence showed Joseph was “incapable of making health care determinations based upon a true assessment of Elma’s best interests.” Even assuming that the health care powers of attorney were valid, the temporary guardian’s decisions would stand. In Re Guardianship of Mason, September 17, 1996.

The Mason case illustrates a common potential for conflict. With the growing prevalence of advance directives generally, and durable health care powers of attorney in particular, what should health care providers do when family members and agents do not appear to be acting in the “best interests” (a phrase admittedly open to interpretation) of the patient? More importantly, what should they do when the family member or agent is making decisions different from those directed in the living will or other advance directive?

Arizona law is very clear. Health care providers are required to comply with the stated wishes of patients (as set out, for instance, in living wills). Surrogates (including both agents and family members) are also required to follow the patient’s wishes. Where surrogates choose not to follow the instructions of the patient, there is provision for a relatively simple and speedy court proceeding to determine the patient’s wishes and direct the surrogate to act accordingly.

Are health care providers required to take every such concern (or dispute) to court? No, but providers should be aware of their ultimate duty to carry out the patient’s wishes regarding treatment. If family members persist in their refusal to act according to an advance directive after counseling, negotiation, involvement of ethics committees and good medicine and social work practice, legal action may be required.

Ms. Mason’s case implies a subtly different question. What should the health care provider do when there is not clear direction from the patient, but the surrogate is acting inappropriately? Of course, disruption and abuse may be in the eyes of the beholder, and health care providers should be slow to try to overrule family wishes. But when there is no clear expression of the patient’s wishes, the treatment team must look to the patient’s “best interests.” If family members are acting contrary to that principle, once again court action may be the only option.

Arizona law on the duties of health care providers to follow surrogates’ instructions can be found at Arizona Revised Statutes ’36-3204.

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