This week we’ve been preparing a presentation we will soon offer to local firefighters and skilled nursing home administrators on the differences in authority between agents, healthcare agents, and guardians. It can be tricky to know who makes a medical decision for a patient when he cannot make an informed decision for himself, especially if there is disagreement amongst these persons about who the appropriate medical decision-maker should be. As we put the presentation together, we thought it might be helpful to offer you an extended metaphor for remembering whose authority trumps whose.
First, the patient is King. Unless he is incapable of making an informed medical decision, the patient’s choice is sovereign. No one else can speak for him.
The patient’s duly appointed healthcare agent is the Queen. Once a patient can no longer make an informed decision, the healthcare agent is the person authorized to provide it for him. But her authority can potentially be checked by the King. For instance, if the patient regains capacity, then he is again in sole control of his medical decision making. Or if, while incapable of providing informed consent, he protests her authority, she also typically loses.
The patient’s closest family member (in order of relation) is a Jack. If neither the King nor the Queen is in play, the Jack beats everyone else. In Virginia, the relational hierarchy goes 1) spouse, 2) adult child 3) parent 4) sibling. If there are multiple Jacks of the same rank, the majority rules.
Finally, the Ace is a guardian. Even for a patient who is arguably still capable of making an informed decision, the guardian is (almost always) in charge. The guardian can override the patient’s protest, and the patient cannot revoke the guardian’s authority without a court order. So whenever there is a guardian—and there usually isn’t—the winner in a contest of authority is much easier to determine.
But what about the patient’s agent under a power of attorney? Don’t worry, we didn’t forget. We’d classify him as a Joker. Typically, he has no authority to make medical decisions for the patient unable to provide informed consent, and he is supposed to cooperate with the person who does. But sometimes—rarely in our experience—his document of appointment will authorize him to make medical decisions for the person in addition to granting him his more standard powers to make financial and legal decisions.
Like any other card game, the basic rules have exceptions and occasionally require judgment calls. In such situations, those looking to win the hand are welcome to call us.
This content provided by Jeremy L. Pryor, Esq. from The Senex newsletter.
