Every health care decision requires an understanding of the patient’s condition, and the benefits and burdens of the proposed treatment. Most people have strong feelings and beliefs about when and to what extent they would accept invasive or aggressive treatment. The decision is more difficult for patients who cannot understand or communicate their wishes, due to physical or mental incapacity. Still, the decision must be made.

If there is no one who can legally speak for the patient, the law requires that a guardian be appointed by the court. The court will authorize the guardian to make treatment decisions, sometimes adding instructions or limitations as to how the guardian may act. Guardianship can be a time-consuming and expensive procedure, but the court will expedite the process if there is a medical emergency.

A simple alternative to guardianship is a health care proxy. The person creating the proxy (“Principal”) appoints another person (“Agent”) to make medical and health-care decisions, if the Principal becomes unable to do so. The Principal can also designate an alternate Agent, in case the primary Agent is not available. 

Whether by guardianship or proxy, the decision maker is required to use “substituted judgment”, which means that the decision-maker must decide as the Principal would want, based on the Principal’s own feelings and beliefs. The law requires this standard, in observation of every individual’s rights of privacy and self-determination. The law requires that the Principal understand the nature and effect of the proxy at time of signing the document.

Everyone should have a health care proxy. It enables you to decide who the decision-maker will be, and to indicate your own feelings and beliefs about treatment.