Being able to make health care decisions for ourselves is so important to us, but what happens if you become incapacitated and are unable to voice your opinion? If you don’t have a health care proxy or guardian in place, state law chooses who can make those decisions.
Posted on November 5, 2021
In an emergency, medical providers can take measures to keep us alive, but once the emergency has passed, the medical providers will look for someone to make the important medical decisions. If you are unable to make your own health care decisions, either temporarily or permanently, and you have nothing in place to allow someone else to make those decisions for you, then most state laws dictate who has the right to act on your behalf.
The list of surrogates who can make medical decisions for you usually goes in order of priority, starting with your spouse and adult children. Parents, siblings, grandchildren, and close friends may also be surrogates. These may not be the people you want making decisions for you, and not having your wishes spelled out can cause dissension among your family and confusion for medical professionals.
A few states (Massachusetts, Missouri, Nebraska, and New Jersey) do not have laws dictating who can act in an incapacitated person’s place. In those states, your family may have to go to court to get a guardian appointed. Even in states with surrogate laws, family members on the surrogate list may disagree over treatment and end up in court, asking the court to appoint a guardian. Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. The guardianship process is expensive, time consuming and very restrictive, so it is almost always a last resort.
The best way to avoid the state choosing who acts for you or the difficulty of guardianship is to have a health care proxy (or health care power of attorney) in place. A health care proxy is a document that allows you to appoint someone you trust to act as your agent for medical decisions. By executing a health care proxy, you are authorizing your agent to carry out your wishes. Doctors and other medical professionals will defer to the person named in the document to act on your behalf.
Contact your attorney to draw up a health care proxy.