AUGUST 10, 2009 VOLUME 16, NUMBER 50
When you name someone as your health care agent, you literally entrust them with life-and-death decisions. When you are the agent the job can sometimes seem overwhelming.
Sometimes health care decisions must be made by someone who was not even designated in a power of attorney. A “surrogate” decision-maker (usually, but not always, the closest family member) is often empowered by state law to act when the patient has not made a specific choice. Few patients have had specific discussions with their agents about their health care wishes, and those who have not gotten around to signing advance directives are even less likely to have given any direction.
Although thousands upon thousands of people make health care decisions for someone else every year, there is little help or direction available for the agent or surrogate. Lawyers may be familiar with end-of-life care and decisions, but they seldom get involved — and may be an expensive way to facilitate decisions even if they are available.
We can offer some general advice and a pair of printed resources for those making health care decisions for someone else. First, a few suggestions:
- Talk to the person who has named you as agent about his or her wishes. Sooner is better than later, but even a seriously ill, demented or incapacitated patient might be able to give some direction.
- If you know you have been named as health care agent, ask for a copy of the power of attorney. It might include provisions that surprise you, or that you need clarified.
- When you have to begin using the health care power of attorney, make sure you get all the information you need. Talk to doctors, nurses and caretakers. Explain why you need to have your questions answered, and insist that you get them answered.
- If you do not fully understand the medical issues involved in a given procedure or test, tell the providers you need more information. Do not hesitate to get a second opinion when you are uncertain what you should be doing.
- Remember that you are not applying your own standards to the decision, but those of the person for whom you are acting. This can be the most difficult part of handling a health care power of attorney or surrogacy. The law recognizes -- and favors -- what it calls "substituted judgment." That means that you are expected to substitute the patient's judgment for your own, not the other way around.
There are at least two good printed resources for a health care decision-maker to consult. Both are online and free. We regularly recommend these to our clients (and their families):
- Making Medical Decisions for Someone Else: A How-To Guide, published by the American Bar Association. It is available — free — online, and should be very helpful. In fact, the entire ABA section on legal issues involved in aging is interesting; you can browse through a number of useful resources.
- Hard Choices for Loving People, by former hospital chaplain Hank Dunn. You can read and print it online at no cost. You can also purchase one or more printed copies, in English or Spanish, for $6.00 each (or less -- prices drop as you order them in bulk).