(The pdf for the issue in which this article appears is available for download: (Bifocal, Vol. 36, Issue 6).)
In the summer of 2003, Sarah B. Richardson1 penned an article on guardianship entitled “Health Care Decision Making: A Guardian’s Authority,” which was published in Volume 24 of the Commission on Law and Aging’s Bifocal. Richardson’s article provided a fifty-state examination on the relationship between patient-appointed health care agents and court-appointed guardians, and whether one appointment statutorily trumps the other appointment.2 As one would expect, the twelve years that have passed since Richardson’s examination have necessitated a new inspection.
While the definition varies from one state to the next, capacity in health care decision-making may be described as “the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.”3 When an individual’s ability to make health care decisions begins to diminish, an advance directive becomes an effective tool for providing informed consent for medical treatment. An advance directive is an expression of personal preferences created prior to incapacity, which can dictate health care instructions or appoint a health care agent to make appropriate decisions when necessary.
On occasion, the incapacitated individual’s voice may be drowned out by a court’s appointment of a guardian. Guardianships occur when a court has deemed that an individual is incapacitated and appoints a decision-maker to act on behalf of the incapacitated individual in one or several areas of decision-making.4 When dealing with health care decisions, an incapacitated individual’s health care agent is often the presumptive guardianship nominee since the individual has already placed his or her trust in someone willing to undertake the task.5 However, courts still might choose another candidate if there is evidence of abuse, failure to act, or a decision that is beyond the scope of the health care agent’s powers under the advance directive.
On those rare occasions when an incapacitated individual has both a health care agent and a guardian, confusion as to the authority of the health care decision-makers may emerge.6 Most states have recognized that the competing voices of a guardian and a health care agent must fall to the clarity of a single authority. By 2003, 34 states acknowledged the possible conflict of dual appointments and had created statutes granting authority over health care decisions to just one of the appointees.7 In 2003, 28 states recognized that the authority of health care agents to make health care decisions trumped the guardian’s authority.8 As of 2015, that number has expanded to 35 states and the District of Columbia.9 Interestingly, by 2003, six states had determined that the court-appointed guardian’s authority to make health care decisions trumped the health care agent’s authority.10 That number has now risen to 12 states.11
Although the expansion of states adopting statutes that grant health care decision-making authority to a single appointee provides clarity, only health care agents preserve the true voice of the incapacitated individual. Since a guardian is a court-appointed official, a guardian may not be familiar with the incapacitated individual’s personal values and preferences. The same cannot be said for a health care agent who had been personally chosen by the individual prior to incapacity.
The problem presented by giving priority to guardians rather than health care agents may be mitigated to an extent by statutes incorporating some form of a guardianship decision-making standard. Decision-making standards are instrumental in attempting to align the guardian’s health care decisions to what the individual would have wanted.12 In 2003, 22 states had statutes incorporating a decision-making standard for guardians.13 Currently, that number has risen to 37 states and the District of Columbia.14
Both the Uniform Health-Care Decisions Act (UHCDA) and the Uniform Guardianship and Protective Proceedings Act (UGPPA) advocate the inclusion of a decision-making standard that generally follows a three-step hierarchy in decision-making: (1) in accordance with the explicit instructions of the individual, (2) in accordance with the personal values and preferences of the individual, or (3) in accordance with the best interests of the individual.15 As of 2015, only 21 states have adopted a decision-making standard that follows the UHCDA and UGPPA format;16 the majority of the remaining states only follow either one or two of the decision-making steps.17 National standards for guardians internalize the importance of maintaining the incapacitated individual’s voice by giving priority to the individual’s explicit instructions, values, and preferences.18
As the issues facing incapacitated individuals gain momentum in the eyes of our society,19 the remaining states may recognize the need for adopting statutes addressing the relationship between patient-appointed health care agents and court-appointed guardians.20 While states granting authority to guardians rather than health care agents provide clarity, only statutes allowing health care agents to trump guardians provide progress.
- Health Care Decision-Making Authority: Who Makes the Decision?
- Health Care Decision-Making Authority: What is the Decision-Making Standard?
1 Sarah Beth Richardson was a summer intern at the ABA Commission on Law and Aging in 2003.
2 For an in-depth examination of the relationship between health care agents and guardians, see Sarah Beth Richardson, Health Care Decision Making: A Guardian’s Authority, 24 Bifocal 4, 1, 5-10 (2003).
3 Shari A. Levitan & Helen Adrian, Features, Brave New World: Ethical Issues Involving Surrogate Health Care Decisions, 20 Probate & Property 30, 31 (2006) (citing Mass. Gen. Laws ch. 201D, § 1 (1992)).
4 See Richardson, supra note 2, at 1 (pointing out that courts appoint guardians by the duration and the extent of duties after a screening process that weighs evidence presented by an individual’s physicians and other parties).
5 See, e.g., Minn. Stat. Ann. § 145C.07, Subd. 3 (West 2007) (“Unless the principal has otherwise specified in the health care directive, the appointment of the health care agent in a health care directive is considered a nomination of a guardian.”).
6 See Richardson, supra note 2, at 5 (making light of the infrequency of such an occurrence).
7 See id. (pointing to the dual appointments as room for “confusion”); see also id. at 9 nn.10-11 (listing the states that have granted authority to guardians and health care agents, respectively).
8 See id. at 9 n. 11 (noting that Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Nebraska, New Hampshire, New York, North Dakota, Oregon, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wyoming had statutes granting authority to health care agents).
9 See Comm’n on Law and Aging, Am. Bar. Ass’n, Health Care Decision-Making Authority: Who Makes the Decision? 1-11 (2015) (forthcoming 2015) [hereinafter Who Makes the Decision?] (illustrating that, by 2015, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming all had adopted statutes granting trumping authority to health care agents).
10 See Richardson, supra note 2, at 9 n. 10 (noting that Alabama, Alaska, Kansas, North Carolina, Texas, and Wisconsin had statutes trumping granting authority to guardians).
11 See Who Makes the Decision?, supra note 9, at 1-11 (illustrating that, by 2015, Alabama, Hawaii, Idaho, Kansas, Louisiana, Minnesota, Missouri, Montana, Nevada, Pennsylvania, South Carolina, and Washington all had adopted statutes granting trumping authority to guardians).
12 See Unif. Health Care Decisions Act § 2(e) (1994) (defining the decision-making standard as acting in accordance with the incapacitated individual’s health care instructions and wishes, if known, or, at the very least, making decisions in the individual’s best interest); Unif. Guardianship Protective Proc. Act § 314(a) (1997) (defining the decision-making standard as following the desires and personal values of the incapacitated individual, to the extent known, or acting in the best interest of the individual).
13 See Richardson, supra note 2, at 12 n.51 (highlighting Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Mississippi, Nebraska, New York, Ohio, Pennsylvania, South Carolina, South Dakota, Virginia, and West Virginia as states with substitute decision making statutes in 2003).
14 See Comm’n on Law and Aging, Am. Bar Ass’n, Health Care Decision-Making Authority: What is the Decision-Making Standard? 1-19 (2015) (forthcoming 2015) [hereinafter What is the Decision-Making Standard?] (illustrating Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin as states with substitute decision making statutes by 2015).
15 See supra note 12 and accompanying text.
16 See What is the Decision-Making Standard?, supra note 14, at 1-19 (illustrating that California, Colorado, Georgia, Hawaii, Illinois, Kansas, Maryland, Massachusetts, New Jersey, New Mexico, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia, and Wisconsin have decision-making standards that generally follow the three-step format).
17 For instance, Arizona, Minnesota, and Vermont have statutory language demonstrating the adoption of a decision-making standard that is in accordance with an incapacitated individuals expressed instructions and personal preferences. See id. On the other hand, Delaware, Indiana, Louisiana, Missouri, and Rhode Island have statutes only incorporating the best interest standard. See id. Similarly, Connecticut, Florida, Indiana, Nebraska, and Nevada only have statutes adhering to the explicit wishes and instructions of the individual. See id.
18 See, e.g., Nat’l Guardianship Ass’n, Standards of Practice, 6-7 (2013), available at http://www.guardianship.org/documents/Standards_of_Practice.pdf (advocating for the three-step decision-making standard).
19 See, e.g., John Richardson, The Battle for Mrs. Astor, Vanity Fair (Oct. 2008), available at http://www.vanityfair.com/news/2008/10/astor200810 (displaying the reach of a high-profile elder abuse case within pop culture).
20 As of 2015, only Oklahoma, Rhode Island, and Texas have not adopted statutes granting authority over health care decisions to either health care agents or guardians. See Who Makes the Decision?, supra note 9, at 1-11. ■