You Have a Health Care Proxy. Now What!
A health care proxy created pursuant to New Jersey's Advance Directives for Health Care Act permits an individual to appoint an-other person to make medical decisions for that individual if the individual lacks "decision-making capacity."
The health care proxy becomes effective when it is given to the hospital or doctor and it has been determined the patient lacks "decision-making capacity." But who makes that determination? Patients have decision-makingcapacity, if they understand and appreciate the nature and consequences of their decisions. They must know the benefits and risks of treatment. It is the attending physician who must make these decisions as to the patient's mental ability to decide.
When a physician determines the patient lacks the necessary capacity, it must be stated in writing and included in the patient's records. Another physician must endorse the attending physician's conclusions. This confirming opinion must also be in writing. A confirming opinion isn't necessary if the designated health care representative and the attending physician concur that the lack of decision-making capacity is readily apparent. If a mental condition is involved it may be necessary for physicians qualified to diagnose mental or psychological disabilities to be consulted.
Patients must be informed of the decisions made if possible. The patient may dispute the decision and, if so, the hospital must have resolution procedures.
Any health care representative must act in good faith and within the authority granted. Attempts must be made to communicate health care decisions to the patient. If the patient can't speak they still may be able to nod, wink or raise a finger.
Sometimes a patient regains decision-making capacity. If so, the health care representative can no longer make decisions for the patient but can act as an advisor. Another overriding consideration is the fact that patients, even though they lack mental-capacity, may say they want life sustaining measures. This will override any contrary decisions of the health care representative.
Having a series of persons alternatively appointed as health care representatives is a good idea if there are persons available who understand and know the patient's wishes, desires and values well enough. What if these wishes and desires aren't clear? The health care representative should then look to any current statements made by the patient or statements made in the past to family members or friends. A prior written statement might be helpful.
