On Behalf of the Patient

Abstract

The Patient Self-Determination Act provides an excellent opportunity to clarify some of the issues that affect those who must make health care decisions for incompetent or never competent patients. Two issues that require clarification in most states are: * When does the surrogate's authority commence? * What guidelines must surrogates follow in making decisions for patients? Health care providers utilize different standards for determining decisional capacity, and at a time when efforts have increased to keep health care decisionmaking out of the courtroom, there is also a growing need to formalize the process by which they do so. For many surrogates, the current process raises questions concerning when they have the authority to act on behalf of the patient. While there is little question that guardians' authority to act begins when the court signs an order appointing them, the same is not true for agents under health care powers of attorney or family members. At least thirty-eight states and the District of Columbia have legislation creating a health care power of attorney. Under these various statutes, a health care power of attorney can become effective upon execution, on a specified date, or when the patient becomes incapacitated or disabled. Generally, physicians determine a patient's decisional capacity. Thus, surrogate decisionmakers are controlled by the physician's determination of their right to participate in treatment decisions even though they may be agents under a health care power of attorney that becomes effective upon execution or on a date certain. This can become confusing for agents in situations where they feel die patient is unable to make a health care decision and the treatment being provided is contrary to what they believe to be the patient's wishes. Even in those situations in which the health care power of attorney becomes effective when the patient becomes incapacitated, if the document contains no definition of incapacity, the physician will once again control when the agent may participate in decisionmaking. Some jurisdictions, such as the District of Columbia and Virginia, specifically require written certification of incapacity before a surrogate has authority to act on behalf of the patient. Two physicians, one of whom is a psychiatrist, should evaluate the patient at or near the time a decision has to be made and document the determination of incapacity in the patient's medical record. An additional evaluation must be conducted every thirty to sixty days thereafter. This method of determining incapacity in the non-judicial setting clarifies when a surrogate could act on behalf of the patient. …