Leg&
and
Substitute Treatment
Et&.&
lsszles
Decision Makers in Health Decisions
A
LL ADULTS are legally presumed to have the competence to make and execute health care treatment decisions for themselves (Schloena’orff ~1.Society of NW Yovk Hospital, 19 14). This competency is a legal presumption of decision-making capacity conferred on the adult as a consequence of attaining the legal age of majority (Northrop, 1988). Nurses in all fields of practice, however, encounter individuals who demonstrate a limited ability to make decisions for themselves. Two legal substitute decision-making options have been designed to meet the needs of incapacitated adults who need others to make their health care treatment decisions for them: guardians and durable powers of attorney for health care treatment decisions. Guardianships are courtappointed substitute decision makers who are granted the responsibility to exercise authority over another person’s personal decisions. The decisions that the guardian may make include living arrangements and dietary restrictions for the incapacitated adult. In addition, the guardian may also be responsible for health care treatment decisions such as informed consent or refusal for surgery, home health care, or termination of life support. A durable power of attorney for health care is a private written document that allows one person (the principal) to grant another person (the agent) the authority to act for him/her in health care treatment decisions if the principal becomes incapacitated (Uniform Durable Power of Attorney Act, 1983). This delegation of authority allows an adult to anticipate a future need and name another adult who has the responsibility and authority to make health care treatment decisions. Both of these substitute decision makers have the legal authority to make health care treatment decisions, but both have specific advantages and disadvantages. The first advantage of a guardianship appointment is that a guardian may be appointed after the incapacity has occurred even if the adult has not planned for the decision-making incapacity. The second advantage is that guardian serves under court supervision and is appointed to act in the adult’s best interests. These advantages of guardianship may be counterbalanced by two disadvantages: the bureaucracy and the appointment of a stranger in the role of decision maker. Because the guardian is court appointed, the legal process
Care
requires the filing of a petition, a review of the incapacitated adult’s physical and mental status, and a judicial hearing. These are time-consuming steps. If the need for a health care treatment decision is urgent, this system may be unresponsive. Second, although the courts clearly prefer to have a close family member or friend appointed as an adult’s guardian, some incapacitated adults do not have a friend or family member available to serve. Therefore, by necessity, the guardian making the sensitive determinations may be a stranger to the person affected most by the outcome of the decision. The advantages of the durable power of attorney for health care treatment focus around the fact that it is a private legal document. Because it is a private document, it does not require judicial approval; it may be implemented quickly and quietly; and it allows the person to personally select his or her own future decision maker. The most significant disadvantage of the durable power of attorney for health care treatment is that it must be drafted prior to the onset of the named adult’s incapacity. If the document does not exist prior to the incapacity, it cannot be executed. After the Cruzan decision (Cruzan v. Director, Missouri Department of Health, 1990), adults in all stages of health have become increasingly aware of the use and limitations of living wills in health care treatment decisions. Therefore, some families or friends are using guardianships for adults who are incapacitated. Others, in an attempt to effectuate their own preferences for health care treatment, are choosing to draft a durable power of attorney for their own health care treatment decisions. As a result of this increased use of substitute decision makers for health care treatment decisions, nurses must recognize the scope of responsibilities of substitute decision makers. Unfortunately, nurses must also be aware that some substitute decision makers may abuse or neglect the adults entrusted to their care. If patients are being victimized, nurses must recognize that the substitute decision maker has violated a legal responsibility and appropriate measures must be initiated to protect the incapacitated adult. Finally, nurses must recognize that the substitute decision maker stands as a proxy for the incapacitated adult and, therefore, should be given the same information, consideration, and respect as the patient.
References KAY WEILER, Assistant Professor
RN,
MA,
JD
Cruzan
University of loula CoLIege of Nursing Iowa Czty, IA 52242 0 1991 by W.B. Saunders Company 8755-7223/91/0705-0006$03.00/O
Copyright
Jourmd
v. Director,
Missouri
Department
of Health,
58 LW
49 16 (1990). Northrop, C. E. (1988). Nursing practice and the legal presumption of competency. Nursing Odook, 36, 112. Schloendorff v. Society of New York Hospital, 2 11 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914). Uniform Durable Power of Attorney Act, 0 1 (1983). of Professional
Nursing, Vol 7, No 5 (September-October),
1991:
p 268
and
Substitute Treatment
Et&.&
lsszles
Decision Makers in Health Decisions
A
LL ADULTS are legally presumed to have the competence to make and execute health care treatment decisions for themselves (Schloena’orff ~1.Society of NW Yovk Hospital, 19 14). This competency is a legal presumption of decision-making capacity conferred on the adult as a consequence of attaining the legal age of majority (Northrop, 1988). Nurses in all fields of practice, however, encounter individuals who demonstrate a limited ability to make decisions for themselves. Two legal substitute decision-making options have been designed to meet the needs of incapacitated adults who need others to make their health care treatment decisions for them: guardians and durable powers of attorney for health care treatment decisions. Guardianships are courtappointed substitute decision makers who are granted the responsibility to exercise authority over another person’s personal decisions. The decisions that the guardian may make include living arrangements and dietary restrictions for the incapacitated adult. In addition, the guardian may also be responsible for health care treatment decisions such as informed consent or refusal for surgery, home health care, or termination of life support. A durable power of attorney for health care is a private written document that allows one person (the principal) to grant another person (the agent) the authority to act for him/her in health care treatment decisions if the principal becomes incapacitated (Uniform Durable Power of Attorney Act, 1983). This delegation of authority allows an adult to anticipate a future need and name another adult who has the responsibility and authority to make health care treatment decisions. Both of these substitute decision makers have the legal authority to make health care treatment decisions, but both have specific advantages and disadvantages. The first advantage of a guardianship appointment is that a guardian may be appointed after the incapacity has occurred even if the adult has not planned for the decision-making incapacity. The second advantage is that guardian serves under court supervision and is appointed to act in the adult’s best interests. These advantages of guardianship may be counterbalanced by two disadvantages: the bureaucracy and the appointment of a stranger in the role of decision maker. Because the guardian is court appointed, the legal process
Care
requires the filing of a petition, a review of the incapacitated adult’s physical and mental status, and a judicial hearing. These are time-consuming steps. If the need for a health care treatment decision is urgent, this system may be unresponsive. Second, although the courts clearly prefer to have a close family member or friend appointed as an adult’s guardian, some incapacitated adults do not have a friend or family member available to serve. Therefore, by necessity, the guardian making the sensitive determinations may be a stranger to the person affected most by the outcome of the decision. The advantages of the durable power of attorney for health care treatment focus around the fact that it is a private legal document. Because it is a private document, it does not require judicial approval; it may be implemented quickly and quietly; and it allows the person to personally select his or her own future decision maker. The most significant disadvantage of the durable power of attorney for health care treatment is that it must be drafted prior to the onset of the named adult’s incapacity. If the document does not exist prior to the incapacity, it cannot be executed. After the Cruzan decision (Cruzan v. Director, Missouri Department of Health, 1990), adults in all stages of health have become increasingly aware of the use and limitations of living wills in health care treatment decisions. Therefore, some families or friends are using guardianships for adults who are incapacitated. Others, in an attempt to effectuate their own preferences for health care treatment, are choosing to draft a durable power of attorney for their own health care treatment decisions. As a result of this increased use of substitute decision makers for health care treatment decisions, nurses must recognize the scope of responsibilities of substitute decision makers. Unfortunately, nurses must also be aware that some substitute decision makers may abuse or neglect the adults entrusted to their care. If patients are being victimized, nurses must recognize that the substitute decision maker has violated a legal responsibility and appropriate measures must be initiated to protect the incapacitated adult. Finally, nurses must recognize that the substitute decision maker stands as a proxy for the incapacitated adult and, therefore, should be given the same information, consideration, and respect as the patient.
References KAY WEILER, Assistant Professor
RN,
MA,
JD
Cruzan
University of loula CoLIege of Nursing Iowa Czty, IA 52242 0 1991 by W.B. Saunders Company 8755-7223/91/0705-0006$03.00/O
Copyright
Jourmd
v. Director,
Missouri
Department
of Health,
58 LW
49 16 (1990). Northrop, C. E. (1988). Nursing practice and the legal presumption of competency. Nursing Odook, 36, 112. Schloendorff v. Society of New York Hospital, 2 11 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914). Uniform Durable Power of Attorney Act, 0 1 (1983). of Professional
Nursing, Vol 7, No 5 (September-October),
1991:
p 268
