When loved ones cannot make health care decisions for themselves, close relatives and friends may wonder who is supposed to step in and make the judgment calls. Often, there are several people involved who think that they know how the sick person would want to be treated. If no one makes a timely decision because of arguments over who should be deciding, there may be irreparable harm.
What happens when the patient’s spouse disagrees with decisions made by the person named as the health care proxy in the patient’s health care directive? Who has the final word in healthcare decisions – a spouse or an attorney-in-fact?
Who has the most legal authority to make health care decisions for someone else?
The laws on making medical decisions for others are different in every state, but this is the order of preference used in most states:
- The person or persons named in the health care power of attorney or advance directive
- A court-appointed guardian of the patient
- The patient’s spouse
- An adult child of the patient
- A parent of the patient
- An adult sibling of the patient
- Particular friends or other relatives of the patient
What are your options if a disagreement occurs about a medical decision?
The American Bar Association recommends these steps to resolve a conflict when the family cannot reach agreement:
- Request a meeting with the hospital or nursing facility’s ethics committee. These committees should help families understand the medical issues, see the different viewpoints and look at options. Ethics committees do not decide, they merely advise and educate.
- If the patient is in a nursing facility, request a meeting with the care-planning team. Nursing homes must have up-to-date care plans. Discussing your loved one’s care plan with the appropriate nursing home staff, might answer the questions of the family and friends.
- Even if you have the authority to make a medical decision, other family members will feel better about the situation if they have a voice and are involved in the discussion. While the ultimate decision is in your hands, listening to others and respecting their positions will go a long way toward family harmony. Genuinely try to understand why those who disagree with you feel the way they do.
- Always remember that your job as health care decision-maker is not to make the decisions you would make if you were the patient. Your role is to make the decisions the patient would make, if able to do so.
Where can you turn if the doctor, hospital or others will not allow you to exercise your authority?
You may get help from someone affiliated with the hospital or nursing facility, someone from a government agency, clergy or spiritual advisor or a non-profit organization. The facility may have a patient representative, ombudsman, social worker or advisory council, whose job is to advocate for patients. Every state is required by federal law to have a program of ombudsmen in nursing homes and assisted living facilities.
If the family agrees on a clergy member or other spiritual advisor, that person can help resolve the differences and provide comfort and emotional support for the family during this stressful time. You can find very useful information and resources at online non-profit organizations such as The National Hospice and Palliative Care Organization.
Having to face these profound medical decisions can be challenging, even for well-functioning families. Every state handles these questions differently, so protect yourself by consulting with an elder law attorney in your area.
American Bar Association. “Guide for Health Care Proxies.” (accessed July 18, 2017) https://www.americanbar.org/content/dam/aba/administrative/law_aging/tool9.authcheckdam.pdf
American Bar Association. “Making Medical Decisions for Someone Else: A How-To Guide.” (accessed July 18, 2017) https://www.americanbar.org/content/dam/aba/administrative/law_aging/2011_aging_bk_proxy_guide_gen.authcheckdam.pdf
National Hospice and Palliative Care Organization. “Advance Care Planning.” (accessed July 18, 2017) http://www.caringinfo.org/i4a/pages/index.cfm?pageid=3277