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Who makes medical decisions if there is no advance directive?

On Behalf of | Dec 23, 2019 | Estate Planning, Powers Of Attorney |

Health problems are not always predictable. Issues can crop up with little warning, impacting both the individual and their loved ones. Sometimes these ailments are quite serious and leave a person unable to communicate for themselves.

In these situations, an advance medical directive often guides the decision making for the incapacitated person. But what happens if they never signed an advance medical directive?

Determining a proxy decisionmaker

In situations where an incapacitated person does not have an advance medical directive (or a guardian), someone has to make choices about the individual’s medical treatment. The person given that responsibility is known as the proxy decision-maker. They have the authority to make certain treatment choices on behalf of the incapacitated person. The proxy is expected to follow the person’s wishes, if known, or otherwise act in the person’s best interests.

Their authority isn’t all-encompassing. There are limits. For example, a proxy decision-maker can not independently choose to remove a feeding or hydration tube. That requires input from the attending physician and a second, independent physician trained in neurology or neurosurgery.

Who might the proxy decision-maker be?

Finding a proxy decision-maker begins with the attending physician or advanced practice nurse. They are expected to notify as many interested persons as possible, including the patient’s:

  • Spouse
  • Parents
  • Adult siblings
  • Adult children or grandchildren
  • Close friends

At that point, it is up to those loved ones to decide, together, which one of them should serve as proxy decision-maker. Unsurprisingly, this can be an emotional process, one with the potential for serious conflict. If these interested persons can’t agree, one or more may try to initiate proceedings to obtain legal guardianship over the incapacitated individual. This can alienate others and lead to many hard feelings.

The best way to avoid having loved ones go through this is to make sure you have an advance medical directive. Or, if you’re caring for an older adult, consider inquiring into whether such a document exists. During an already stressful time, it can be beneficial to everyone to defuse this dispute before it ever happens.