Who gets to make my medical decisions? (Part 2)
Let me start with a common situation where people absolutely have the ability to make decisions for themselves, but people often misunderstand (sometimes willfully so). Just because someone is elderly, that doesn’t mean that they don’t get to make decisions for themselves!
I vividly remember a situation from when I worked as a case manager in an acute hospital. The patient was in his 70’s, lived alone, and needed to go to a rehab facility after discharge before returning home. I offered him a list of facilities and he chose one near his home. One of the biggest factors in his decision was that his church community frequently visited congregants who went to this rehab facility, and it was important for his mood that he would have visitors. That afternoon, his adult son called me demanding that his dad go to a rehab facility near where he lived. (For clarity, the distance between the two facilities was about 90 minutes) He explained that it would be a lot more convenient so he could occasionally stop by after work, but he got angry when I told him that his dad made the decision so his church family could visit. He tried to insist that his dad needed to go where he chose, but I reminded him that his dad could make whatever decision he wanted to. The unfortunate coda to this story is that the son harassed his dad to change his mind, his dad relented, and then the son only visited 3 times in a 20-day stay.
So let’s assume that someone cannot make decisions for themselves. There’s a legal hierarchy about who can make decisions. Credit to Ochsner Health for the list and it works like this:
The judicially appointed tutor or curator of the patient, if one has been appointed.
An agent acting pursuant to a valid mandate, specifically authorizing the agent to make health care decisions.
The patient's spouse if not judicially separated.
An adult child of the patient.
Any parent, whether adult or minor, for his child.
The patient's sibling.
The patient's other ascendants or descendants.
An adult friend of the patient. (There are specific requirements to be considered the “adult friend”)
Any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his care and any guardian for his ward.
A couple notes about this list. Item 1 on the list mentions a “tutor” and a “curator,” and I needed a reminder on what they are so I figured I’d share that! A “tutor” generally has limited power and is appointed to someone who has temporary or partial incapacity. A “curator” generally has all powers needed to make decisions and is appointed to someone who has total and permanent incapacity. The “adult friend” in item 8 will have specific requirements before they’re allowed to make decisions, so it’s not as if any friend will be making decisions. Finally, if there is more than 1 person in a category, then the majority of those people will make the decision.
Let’s give an example. Let’s say the person is an elderly widower with adult children and is not able to make decisions for himself. In this scenario, the children (let’s say there are 3) will be consulted and the decision will be made by the majority. In my experience, sometimes adult children will appoint a representative (often the oldest child) and then the assumption is that the representative is making a decision on behalf of the majority.
One BIG item on that list is #2 “An agent acting pursuant to a valid mandate, specifically authorizing the agent to make health care decisions” and I’ll explain that in my next post.
