What Happens When an Incapacitated Patient has No Health Care Agent?

What happens if an individual is incapacitated and he or she has not appointed a health care decision-making agent to act on his or her behalf? The Tennessee Health Care Decisions Act answers this question by allowing for a health care decision-maker (surrogate) to be designated. An important part of estate planning is putting measures in place for when an individual is no longer able to make his or her own health care decisions. A health care power of attorney and advance directive are two documents that can be used as planning tools for individuals who want to prepare for periods of incapacitation, but if that doesn’t get done before he or she is incapacitated, a surrogate is Plan B.

When is a Surrogate Needed?

A surrogate may make health care decisions for an adult patient if, and only if: (1) the patient has been determined by their physician to be incapacitated and (2) no health care agent or guardian has been appointed or the appointed agent or guardian is not reasonably available. This means that if the patient is not incapacitated, the patient will still be making his or her own health care decisions. Additionally, if the patient is incapacitated but has appointed a health care agent or guardian, in writing, who is reasonably available, that person would make health care decisions for the patient during that period of incapacity.

Who Should the Surrogate Be?

In order to determine who the surrogate should be, the Tennessee Health Care Decisions Act lays out various criteria to be considered. These criteria include:

1.              Whether the proposed surrogate reasonably appears to be better able to make decisions, either in accordance with the known wishes of the patient, or in accordance with the patient’s best interests;

2.              The proposed surrogate’s regular contact with the patient prior to and during the incapacitating illness;

3.              The proposed surrogate’s demonstrated care and concern;

4.              The proposed surrogate’s availability to visit the patient during the patient’s illness; and

5.              The proposed surrogate’s availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process.

Who Cannot Be the Surrogate?

Per the Tennessee Health Care Decisions Act:

1.              Any individual who the patient has a protective order or other no-contact court order granted against;

2.              The treating health care provider;

3.              Employees of the treating health care provider;

4.              An operator of a health care institution; and

5.              Employees of an operator of a health care institution.

Preferences for the Surrogate

Per the Tennessee Health Care Decisions Act:

1.              The patient’s spouse, unless legally separated;

2.              The patient’s adult child;

3.              The patient’s parent;

4.              The patient’s adult sibling;

5.              Any other adult relative of the patient; or

6.              Any other adult who satisfies the requirements listed above for who should be the surrogate.

What Happens if None of the Preferred Choices for a Surrogate are Available?

If none of the preferred individuals listed in the previous section are available to serve as the surrogate, then the patient’s designated physician may make the health care decision after that physician either: (1) consults with and obtains the recommendations of an institution’s ethics body; or (2) obtains concurrence from a second, independent physician with no involvement in the patient’s care and no hierarchical or decision-making relationship with the designated physician. A third option would be for a hospital or physician or other interested party to petition a court to appoint a guardian ad litem, who will usually be a local attorney.

What Health Care Decisions Can the Surrogate Make?

First and foremost, for any health care decision the surrogate needs to make, the decision should be made in accordance with the patient’s instructions and wishes. If the surrogate does not know the patient’s instructions and wishes, then the surrogate shall make the decisions in accordance with the surrogate’s determination of the patient’s best interest.

As the health care decision-maker for the patient, the surrogate may make all heath care decisions for the patient that the patient could make on his or her own behalf, except whether artificial nutrition and hydration may be withheld or withdrawn from the patient. The surrogate may decide to withhold or withdraw artificial nutrition and hydration only when the designated physician and a second independent physician certify in the patient’s current clinical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the patient’s death and the patient is highly unlikely to regain capacity to make medical decisions.

Impact

When an individual becomes incapacitated without a designated health care agent, the Tennessee Health Care Decisions Act outlines how to appoint a surrogate to make health care decisions for the individual. While this process ensures that someone is available to act in the individual’s best interest, it may result in health care decisions being made for the individual by someone the individual would not personally choose who might make decisions that don’t align with the individual’s wishes. Consulting with a knowledgeable estate planning attorney is essential to ensuring a plan is in place for periods of incapacity.

At Vermillion Law, we focus on estate planning, business law, and probate. Contact us today to schedule a consultation and take the first step toward peace of mind!