You have the right to make your own health care decisions as long as you have capacity to do so.
If you lose capacity to understand, make, and communicate health care decisions, someone else will need to make those decisions for you.
By creating an advance health care directive, you can control who that person is and what that person is authorized to do through a medical power of attorney. You can also provide guidance to that person and your attending health care provider through a living will.
In this article, we look at what happens if you are unable to make your own health care decisions and you don’t have a power of attorney for health care or a living will.
What happens if you don’t have a medical power of attorney?
If you haven’t nominated an agent to serve as power of attorney for health care or if no one you nominated is able and willing to serve, someone else will need to serve as your health care surrogate.
A health care surrogate is just like a health care agent under a medical power of attorney, except in the case of a surrogate you are not choosing who serves as your representative. Instead, state statute dictates who may serve and in what order of preference.
Under the Uniform Health Care Decisions Act Section 5(b), in the absence of your designation of another individual either in an advance health care directive or by personally informing the supervising health care provider, any member of the following classes may serve, in descending order of priority:
- Your spouse, unless legally separated;
- An adult child
- A parent; or
- An adult brother or sister
If none of these individuals is available and willing to serve, the next class that can serve is any “adult who has exhibited special care and concern for the patient, who is familiar with the patient’s personal values, and who is reasonably available.” The priority for individuals eligible to serve as surrogate in your state may vary from the Uniform Health Care Decisions Act, but most states follow a similar progression favoring those individuals with the closest family tie to you first.
The dangers of relying on state statute for choosing your health care representative
While they aim to incorporate the presumed desire of a majority of people who find themselves without a health care agent, the default rules under state statute are not tailored to every situation. If there is at least one member of the above classes who you wouldn't trust with making a healthcare decision on your behalf, you should protect yourself by creating an advance health care directive.
If you hold different beliefs or are estranged from one or more of your close family members and that family member is called to serve, he or she is unlikely to be the best choice to act in your interest.
If you are in a non-married, committed relationship and want to make certain that health care decisions are made by your partner, the only way to do so is to designate them as your agent under a medical power of attorney. Otherwise, these individuals fall into the catch-all bucket of distant relatives and unrelated adults with whom you enjoy a close relationship and are entitled to serve as your health care surrogate if and only if all the other ranking family members decline to act or are otherwise not reasonably available.
Even in a case in which you have strong relationships with all the individuals in the default classes, an advance health care directive is still helpful insofar as it eliminates potential disputes that may arise when multiple members of the same class seek to act with differing opinions.
What happens if you don’t have a living will?
A living will is a legal document that provides important guidance to your loved ones, health care agent, and attending health care provider regarding the type of care you wish to receive.
If you don’t have a living will, your health care agent or surrogate will be responsible for making decisions for you based on your best interest and in light of your personal values, to the extent known by the agent. These decisions can be very stressful. By detailing your preferences in advance, you reduce the gap for what your agent needs to interpret, thereby alleviating your agent’s stress.
Moreover, some states permit your agent to consent to certain actions and procedures like removing artificial nutrition and hydration only if you have specifically authorized them to do so in an advance health care directive or they can establish with clear and convincing evidence that decision aligns with your wishes.