Health Care Decision-Making Authority of Guardians and Agents: An Update

In the summer of 2003, Sarah B. Richardson¹ penned an article on guardianship entitled “Health Care Decision Making: A Guardian’s Authority,” which was published in Volume 24 of the Commission on Law and Aging’s Bifocal. Richardson’s article provided a fifty-state examination on the relationship between patient-appointed health care agents and court-appointed guardians, and whether one appointment statutorily trumps the other appointment.² As one would expect, the twelve years that have passed since Richardson’s examination have necessitated a new inspection.

While the definition varies from one state to the next, capacity in health care decision-making may be described as “the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.”³ When an individual’s ability to make health care decisions begins to diminish, an advance directive becomes an effective tool for providing informed consent for medical treatment. An advance directive is an expression of personal preferences created prior to incapacity, which can dictate health care instructions or appoint a health care agent to make appropriate decisions when necessary.

On occasion, the incapacitated individual’s voice may be drowned out by a court’s appointment of a guardian. Guardianships occur when a court has deemed that an individual is incapacitated and appoints a decision-maker to act on behalf of the incapacitated individual in one or several areas of decision-making.⁴ When dealing with health care decisions, an incapacitated individual’s health care agent is often the presumptive guardianship nominee since the individual has already placed his or her trust in someone willing to undertake the task.⁵ However, courts still might choose another candidate if there is evidence of abuse, failure to act, or a decision that is beyond the scope of the health care agent’s powers under the advance directive.

On those rare occasions when an incapacitated individual has both a health care agent and a guardian, confusion as to the authority of the health care decision-makers may emerge.⁶ Most states have recognized that the competing voices of a guardian and a health care agent must fall to the clarity of a single authority. By 2003, 34 states acknowledged the possible conflict of dual appointments and had created statutes granting authority over health care decisions to just one of the appointees.⁷ In 2003, 28 states recognized that the authority of health care agents to make health care decisions trumped the guardian’s authority.⁸ As of 2015, that number has expanded to 35 states and the District of Columbia.⁹ Interestingly, by 2003, six states had determined that the court-appointed guardian’s authority to make health care decisions trumped the health care agent’s authority.¹⁰ That number has now risen to 12 states.¹¹

Although the expansion of states adopting statutes that grant health care decision-making authority to a single appointee provides clarity, only health care agents preserve the true voice of the incapacitated individual. Since a guardian is a court-appointed official, a guardian may not be familiar with the incapacitated individual’s personal values and preferences. The same cannot be said for a health care agent who had been personally chosen by the individual prior to incapacity.

The problem presented by giving priority to guardians rather than health care agents may be mitigated to an extent by statutes incorporating some form of a guardianship decision-making standard. Decision-making standards are instrumental in attempting to align the guardian’s health care decisions to what the individual would have wanted.¹² In 2003, 22 states had statutes incorporating a decision-making standard for guardians.¹³ Currently, that number has risen to 37 states and the District of Columbia.¹⁴

Both the Uniform Health-Care Decisions Act (UHCDA) and the Uniform Guardianship and Protective Proceedings Act (UGPPA) advocate the inclusion of a decision-making standard that generally follows a three-step hierarchy in decision-making: (1) in accordance with the explicit instructions of the individual, (2) in accordance with the personal values and preferences of the individual, or (3) in accordance with the best interests of the individual.¹⁵ As of 2015, only 21 states have adopted a decision-making standard that follows the UHCDA and UGPPA format;¹⁶ the majority of the remaining states only follow either one or two of the decision-making steps.¹⁷ National standards for guardians internalize the importance of maintaining the incapacitated individual’s voice by giving priority to the individual’s explicit instructions, values, and preferences.¹⁸

As the issues facing incapacitated individuals gain momentum in the eyes of our society,¹⁹ the remaining states may recognize the need for adopting statutes addressing the relationship between patient-appointed health care agents and court-appointed guardians.²⁰ While states granting authority to guardians rather than health care agents provide clarity, only statutes allowing health care agents to trump guardians provide progress.  (Continue Reading)

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Health Care Decision-Making Authority of Guardians and Agents: An Update