Decision-Making When Incapacitated: Who Makes Medical Decisions If You Can’t?

What would happen if you suffered an unexpected illness or accident and became unable to make your own medical decisions? Who would speak for you and ensure you receive the care you want?

These are difficult but important questions to consider.

Planning ahead by designating a medical decision maker in an advance directive can give you peace of mind that your wishes will be honored. Still, many people either never get around to it or don’t realize the importance of clearly documenting their preferences. That’s when problems arise.

So, who makes medical choices for you when you can’t? The answer may surprise you.

How is Incapacity Determined in Minnesota?

Under Minnesota Statutes Section 524.5-102 subdivision 6, an “incapacitated person” is defined as an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make personal decisions and who is unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological and supported decision making assistance.

Say, for example, you are hospitalized and unable to make medical choices; your doctor will evaluate whether you have lost the capacity to make your own care decisions. They look for signs that your ability to understand your condition, evaluate the risks and benefits of proposed treatments, or communicate a decision is impaired. Traumatic brain injury, dementia, and comatose states can all lead to incapacity.

Default Designation of Your Medical Decision Maker

If you become incapacitated with no advance directive in place, Minnesota law establishes a priority list of family members who can make medical decisions on your behalf.

First in line is your spouse, followed by your adult children, your parents, and then your siblings. More distant relatives like nieces, nephews, grandparents, and others may also be called on.

Healthcare facilities have processes for verifying and contacting potential surrogate decision-makers based on your documented relationships and family information. Many states have similar hierarchical lists of default decision-makers.

When Healthcare Professionals Act as Decision Makers

In emergency situations where no family is available, your doctors may need to make immediate medical decisions for you until a legal surrogate can be identified. The hospital may also consult an ethics committee for guidance on difficult treatment dilemmas that don’t have clear solutions.

If a designated decision maker is verified, healthcare professionals will collaborate with them on ongoing care choices. Your surrogate has the final say, but your doctors and nurses are still closely involved, providing their medical expertise to help determine the best path forward aligned with your wishes.

Guardianship and Conservatorship

If you lose capacity without advance directives, your loved ones may need to go to probate court and establish guardianship and conservatorship to gain legal authority over your medical and financial decisions.

This can be a public, drawn-out, and expensive process. The court appoints a guardian based on who they believe you would want acting on your behalf.

Seeking guardianship should be a last resort. It is far better to be proactive and appoint decision-makers using advance directives before a crisis strikes.

Control Your Healthcare Decisions With an Advance Directive

The most reliable way to choose your medical decision-maker is to complete an advance directive, also called a Health Care Directive, while you still have capacity.

A Health Care Directive provides written instructions about your care preferences if you are terminally ill or unconscious and designates someone you trust to interpret your wishes and make decisions for all other medical scenarios.

Your appointed agent cannot override your Health Care Directive, and they have a duty to set aside their own judgments and make choices based on your values. Documenting your wishes clearly in advance ensures you stay in control, even when incapacitated.

Choosing a Healthcare of Attorney Agent

Selecting someone to make medical decisions on your behalf if you lose capacity is a major choice. This person will be entrusted with carrying out your wishes and values.

Some key factors to consider when picking a surrogate decision maker:

• Choose someone who knows you well and understands your priorities, values, and treatment preferences based on past conversations.
• Pick someone willing to set aside their own judgments to honor your preferences and best interests.
• Select a surrogate who can calmly evaluate medical options, risks vs. benefits, and quality of life considerations.
• Choose someone who will consult your doctors and faithfully follow your wishes rather than their own opinions.
• Pick someone who can thoughtfully resolve any disagreements between family members or friends.
• It is important to designate a second alternate surrogate in case your first choice becomes unavailable.

Choosing the right agent takes time and reflection. It should be someone you trust who shares your values and can make tough medical calls on your behalf if you can’t speak for yourself. Discuss your priorities with them now to prepare them for this important role.

The Bottom Line

Losing the ability to make our own medical decisions is scary to contemplate. But having open discussions and putting advance directives in place can provide comfort that your wishes will be honored if the unthinkable occurs.

Advance planning allows you to stay in control of your medical treatment even when you can’t speak for yourself. It offers reassurance that your values will guide care during incapacitation.

For assistance creating a customized advance directive, please reach out to our estate planning team at Safe Harbor Estate Law. Thoughtful preparation today can provide peace of mind for all of life’s uncertainties ahead.