Why You Should Have A Healthcare Agent

(Jason Chen is a medical ethicist with a PhD in philosophy. He has worked as a patient advocate at The James Cancer Hospital and as a clinical bioethics fellow at The Ohio State University (OSU) Wexner Medical Center. He is also an advisory member of the OSU ethics committee and a certified healthcare ethics consultant. He can be found at https://www.healthcarepoa.net/, www.chenphilosophy.com, and https://www.linkedin.com/in/jasonchenphd/.)

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It is widely accepted that every adult patient with decision-making capacity has the right to refuse medical care, even if it is life-saving or life-sustaining. For a patient to have decision-making capacity, they must possess four sub-capacities: be able to understand relevant information, appreciate medical consequences of the situation, reason about treatment options, and communicate a choice.

• • Understanding relevant information means grasping the fundamental meaning of what’s communicated by the medical team.
  • Appreciating consequences means acknowledging the medical condition and likely outcomes of treatment options (or non-treatment).
  • Reasoning about options means engaging in a rational process of manipulating relevant information, like being able to weigh risks and benefits of treatment choices.
  • Communicating a choice means clearly indicating the preferred treatment.

Importantly, a patient must possess all four sub-capacities to have decision-making ability. 

If a doctor deems you to lack decision-making ability, medical decisions will be made in conjunction with your surrogate decision-maker, who makes medical decisions on your behalf (usually a family member). 

The first responsibility of the surrogate (or healthcare agent) is to use what’s called “substituted judgment,” meaning they tell doctors what you would want. 

If they don’t know, they should decide according to “the best interest standard,” meaning what’s good for you. 

Since people have different conceptions of well-being, there’s no consistent standard for all situations. Hence, what a surrogate thinks is in your best interest may not be what you think is best. This is why it’s important to communicate your values and wishes to whomever is your surrogate.

Healthcare Power of Attorney (POA)

A healthcare POA is a legal document that allows you to name someone to make medical decisions for you when you’re unable to do so. That person is your healthcare agent, proxy, or attorney-in-fact. 

The benefit of filling out a POA is that it allows you to name a trusted individual to make medical decisions on your behalf. Your agent would know you and your wishes to properly be your advocate.

If you become incapacitated without a healthcare POA, doctors will make medical decisions in conjunction with your legal next of kin. In Ohio, the order of priority is the following: spouse, children, parents, siblings, then extended family. A named agent trumps everyone on that list. 

Your power of attorney is important for the following reasons:

• • If you have no legal next of kin;
  • You have legal kin, but don’t want them making your medical decisions;
  • You have kin, but none of them is willing or able to make decisions for you;
  • You have multiple kin with equal authority, but they will likely disagree over what to do.

Without legal next of kin or a healthcare agent, a court will appoint a complete stranger to be your guardian to make life and death decisions. If you’re uncomfortable with that, name your POA. 

Complicated Cases

Some cases demonstrate the importance of having a POA.

Case 1:

An elderly woman is dying of stomach cancer. Surgery could extend her life for a couple of months. The patient does not have decision-making capacity, but has three children who are her surrogate decision-makers. One daughter says her mom wouldn’t want surgery and is opposed; another says they must do everything to keep her alive. The son doesn’t want to be involved.

This is a tie with two daughters on opposite sides. Had Mom named a healthcare agent, this impasse could have been avoided.

Case 2:

An elderly man suffers a catastrophic brain injury, causing him to be permanently unconscious.

His son has been his father’s caretaker for a number of years and believes he would want to be kept alive. However, the patient’s wife disagrees. The son informs the team that though the two are technically still married, they’ve been estranged for 10 years. Thus, the son believes he should have the authority to decide.

By Ohio law, the wife is the decision-maker (spouses trump children). But, according to the son, the two are alienated, so he knows what his father wants. Again, a healthcare POA with a named agent could have avoided this dilemma.

Case 3:

An elderly diabetic woman has necrosis of the left foot. The medical team recommends amputation. The patient adamantly refuses, even though she’s informed it could lead to a lethal infection. However, the patient also says she doesn’t want to die. The team is unsure what to do. To make matters worse, they don’t know if she has decision-making capacity. 

The team has been trying to communicate with the patient’s brother – the only legal next of kin. However, he often doesn’t pick up his phone and has missed prior hospital meetings. When they finally get in touch, he’s indecisive. 

This case is difficult because the brother isn’t a reliable surrogate, yet he’s the legal next of kin. The patient should have named a healthcare agent. 

Now, it’s possible she would have named her brother – in which case it wouldn’t have helped. However, when people select a surrogate, they presumably choose someone reliable. If she had chosen someone she knows would advocate for her, this problem might not have surfaced.

Key Takeaways

First, if you don’t choose someone to be your decision-maker, the law will. And you may not like whom that is. 

Second, if you decide to have a healthcare agent, pick someone who will reliably make decisions according to your values.

 

(Please scroll down to comment, and feel free to share our blog posts with others who may benefit from them.)

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Final Exit Network (FEN) is a network of dedicated professionals and caring, trained volunteers who support mentally competent adults as they navigate their end-of-life journey. Established in 2004, FEN seeks to educate qualified individuals in practical, peaceful ways to end their lives, offer a compassionate bedside presence and defend a person’s right to choose. For more information, go to www.finalexitnetwork.org.

Payments and donations are tax deductible to the full extent allowed by law. Final Exit Network is a 501(c)3 nonprofit organization.

 

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