At the beginning of this project, the drafting committee recruited an excellent group of highly qualified observers from both the legal and medical communities and posed a series of questions:
- Why don’t more people execute advance directives and health care powers of attorney? The answers varied. Most people don’t think about the issue until confronted with a hospitalization or medical crisis. Some state laws require formalities akin to those for making a will, which can make execution unnecessarily difficult. Advance planning is uncommon among younger people and within certain ethnic cultures. Some people fear loss of control. Some forms are written in difficult-to-understand legalese.
- What would make advance directives and health care powers more useful in a medical setting? Again, the committee received helpful feedback. Health care professionals often had difficulty determining who had legal authority to make decisions for a patient or whether a patient retained sufficient capacity to make decisions for herself. There was little agreement about who was even qualified to determine whether the patient lacked capacity. It was also unclear what to do when a patient’s family members disagreed about care decisions or when the patient’s advance directive contradicted a doctor’s orders.
- In the absence of advance planning, whom should the law recognize as a default surrogate to make health care decisions? Most health care providers look to the next-of-kin when a patient is unable to make decisions, but it can be difficult to identify the right person because blended families and long-term unmarried couples are increasingly common. Strained family relations can also raise doubt about whether the next-of-kin is really the best person to make decisions in some cases.
- What about decisions involving mental health? A patient with mental health care needs may present a different set of difficult issues for the decisionmaker. Most advance directives and health care power of attorney forms do not expressly address mental health care, and some patients would likely prefer a different surrogate who understood their specific condition to make decisions about mental health care.
Armed with this information, the drafting committee set out to draft a new and improved statute that would encourage more people to execute advance directives and health care proxies and would clarify the legal authority, duties, and responsibilities for surrogates and health care providers. At press time, the committee was finalizing its draft act for reading and, hopefully, approval at the ULC’s upcoming annual meeting in July 2023.
A revised Uniform Health-Care Decisions Act will have the following advantages compared to existing state laws:
- Clear rules regarding determination of capacity. The law will create a rebuttable presumption that a person has capacity to make decisions regarding his own health care and to execute advance directives and health care powers. A finding that the person lacks capacity may only be made by a court or by a medical professional unrelated to the patient, after examination and in accordance with accepted medical standards. The finding must be documented, and a person found to lack capacity will have a right to object. An individual who objects must be treated as having capacity until the finding is confirmed by a court or by a second independent medical professional.
- Clear rules for resolving conflicts. If a person has provided multiple, conflicting instructions, either orally or in writing, the most recent instruction applies. If there are multiple surrogate decisionmakers who disagree about the patient’s treatment, a health care provider is required to comply with the decision of the majority of surrogates who have communicated their views. If they are equally divided, the act provides rules for bringing in additional surrogates to break the tie, and, if that proves impossible, the patient’s treatment is determined by the general law of the state regarding treatment of individuals who lack capacity.
- Default surrogates. The revised act will provide for an expanded list of persons who may serve as default surrogates for health care decisions, with the highest priority given to a person chosen by the patient to make medical decisions, followed by a spouse or domestic partner, parent or adult child, long-term cohabitant, adult sibling, other adult relative, adult who has assisted the individual with supported decision-making recently, and ending with any adult who has exhibited special care or concern for the individual and is familiar with the individual’s personal values. The list is intended to approximate the wishes of the greatest number of people as shown by empirical research of existing powers of attorney, but those who prefer a different surrogate can always designate someone else.
- Disqualification rules. Certain persons are automatically disqualified from serving as a surrogate for health care decisions, including owners and employees of nursing homes for their patients (unless they are immediate family members) and former spouses unless named in a power of attorney executed following the divorce. In addition, any patient may disqualify any individual from making health care decisions on behalf of the patient, either orally or in a record given to a medical provider.
- Advance directives for mental health care. The act provides that any individual may create an advance directive for mental health care, either separately or in conjunction with an advance directive for general health care. An advance directive for mental health care may include provisions specific to the patient’s experience, such as medications or treatments that have proven to be effective or ineffective during previous mental health crisis.
- Clear duties for health care providers. The act provides a procedure for health care providers to document the receipt of a health care instruction and a duty to comply with instructions with very limited exceptions for care that would violate the law, be contrary to applicable health care standards, or violate a conscience-based policy of the provider that was previously communicated to the patient. When care is refused, the provider has additional duties to inform the patient or patient’s surrogate, arrange for transfer to another institution if feasible, and provide continuing care in the interim. Under the act, a provider that complies with an instruction in good faith is immune from civil or criminal liability or discipline from a professional board for doing so.
- Easy-to-use forms. The committee engaged a specialist in plain-language writing to help draft sample forms and instructions that will be easy to understand for most people.
This new uniform act is expected to be approved in summer 2023 and available for state legislatures to consider by the fall.
