Who Makes Healthcare Decisions When You Can’t?

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It is very important to us to be able to make decisions about healthcare ourselves, but what happens when you become incapacitated and cannot express your opinion? If you don’t have a health care agent or guardian, state law determines who can make these decisions.

In the event of an emergency, medical providers can take steps to keep us alive, but once the emergency is over, medical providers will seek someone to make the important medical decisions. If you are unable to make your own health care decisions, temporarily or permanently, and you have nothing to allow someone else to make those decisions for you, then most state laws determine who has the right to to act on your behalf.

The list of substitutes who can make medical decisions for you is usually ordered in priority, starting with your spouse and adult children. Parents, siblings, grandchildren, and close friends can also be substitutes. These may not be the people you would like them to make decisions for you and if your wishes are not spoken out it can lead to disagreements in your family and confusion among health professionals.

Some states (Massachusetts, Missouri, Nebraska, and New Jersey) do not have laws that dictate who can act on the behalf of a disabled person. In these states, your family may need to go to court to appoint a guardian. Even in states with surrogacy laws, family members on the surrogacy list may disagree on treatment and end up in court asking the court to appoint a guardian. Guardianship is a legal relationship between a knowledgeable adult (the “Guardian”) and a person who is no longer able to manage their own affairs (the “Caregiver”) due to inability to manage their own affairs. The guardian can be empowered to make legal, financial, and health decisions for the ward. The guardianship process is expensive, time consuming and very restrictive so it is almost always the last resort.

The best way to avoid the state deciding who to act for you, or the difficulties of guardianship, is to give you a Health Power of Attorney (or Health Power of Attorney). A health care authorization is a document that you can use to appoint someone you trust as your proxy to make medical decisions. By executing a power of attorney, you authorize your proxy to carry out your wishes. Doctors and other healthcare professionals will appoint the person named in the document to act on your behalf.

Contact your lawyer to prepare a power of attorney. To find a lawyer near you, click here.

Last changed: 03/11/2021

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