One of the questions that is often asked when someone goes to the hospital is who makes the medical decision if the person in the hospital cannot. At the Fall Aging Conference in October, Attorney Thaddeus Pope talked about how it works in Minnesota.
It is presumed that all patients have capacity to make their own decisions unless someone proves that they don’t. An example of proof would be showing someone is in a coma. While a coma is the clear case, various stages of dementia are less clear. The patient must also be able to communicate their decision.
A person’s capacity to make decisions is not an all or nothing thing. The patient might be fine making a simple decision (like what to wear or eat). When there is a more complex decision (like weighing alternative treatment options and their risks) the patient may lack the capacity to understand the information. However, the patient may still have capacity to decide who they want making that decision for them.
The three preferred methods of naming a decision maker are: an Advanced Directive (healthcare directive), a POLST (Physicians Order of Life Sustaining Treatment) or a Durable Power of Attorney for Health Care “DPAHC.” These are preferred because the patient has been the one to name the decision maker.
If none of the preferred documents are found then treatment centers look for a default decision maker. Most states name a default order for treatment centers to use (ex. Spouse, adult child, adult sibling or parent). Minnesota does not give any guidance in state law. So people rely on whatever the custom or practice in their area might be.
The bottom line is: if you don’t name someone to make medical decisions if you cannot, then the treatment center will try to find someone who will do it for you. So create an Advanced Directive (Health Care Directive) and name someone to make those decisions for you and give them some guidance about what you might want them to decide.