If you do not have a medical power of attorney in place and are unable to make decisions about your medical care (due to incapacitation or any other significant matter), someone else will need to make these decisions on your behalf, and this person is called your surrogate decision-maker (SDM). The question of when can a family member serve as a surrogate decision-maker is an important one that the experienced estate planning attorneys at Ibekwe Law, PLLC can help you address. Having a durable medical power of attorney in place is always a more robust legal choice, and because you are well-advised to explore all your legal options as they apply to your medical care, we invite you to give us a call at 512-505-2753 today.
The Issues Addressed Under the Law
When it comes to a surrogate decision-maker stepping in to make medical decisions in the event someone is unable to make such decisions on his or her behalf, there are four key concerns that the law addresses:
- The priority (or order) or those potential surrogates who are legally able to act for the person in need (if there is no advance directive in place)
- The limitations regarding the types of decisions that the SDM has the power to make
- The decision-making standards
- The process that is in place for resolving any disputes between surrogates who may have equal priority
In other words, there are a lot of legal considerations when it comes to deciding surrogate decision-makers.
Medical Decision-Making Capacity
While one’s competence must be determined by a court of law, medical decision-making capacity (DMC) is determined by physicians. If it is determined that a patient lacks DMC, a surrogate must be identified. While having a durable medical power of attorney is ideal, not everyone does. If this is the case, Texas’s state laws dictate the answer to the question of when can a family member serve as a surrogate decision-maker.
The State of Texas Weighs In
The State of Texas sets the ground rules for surrogate decision-makers.
The Interdisciplinary Medical Team
The medical interdisciplinary team (IDT) involved in taking care of the individual in question identifies those situations in which a surrogate decision-maker is needed. Upon making this decision, the IDT must designate a family member who checks all of the following boxes as the SDM:
- Is actively involved in the individual’s life
- Has decision-making capacity
- Is willing to take on the role of SDMThose individuals who meet these requirements can be considered for the position of surrogate decision-maker.
Actively Involved Family Members
Actively involved family members (who fulfill all the requirements) will be contacted and considered for the role of SDM in the following descending order:
- Adult child
- Parent or stepparent
- Another adult relative, such as a grandparent, uncle, aunt, cousin, or niece or nephew
Representing Your Wishes
For your SDM to make decisions based on your preferences, he or she will need to know and understand your preferences, beliefs, and values. Typically, this is true of the people you are closest to, which is what guides the state’s decisions on the matter of SDMs. Ultimately, you can only have one SDM at a time, and if more than one person qualifies (in terms of the priorities listed), the person who does not take the role must sign a waiver and consent form accepting the other person’s position. If there is a dispute on the matter, only a court of law can resolve it.
Your SDM’s Authorization
The person who takes on the role of your SDM is granted authority regarding all of the following:
- Decisions regarding your major medical treatment and care
- Decisions regarding your major dental treatment
- Decisions regarding anything that the interdisciplinary team determines to put your rights and/or safety at risk but that is not part of the usual decision-making realm of SDMs
- The release of any records and/or other relevant information regarding your condition and care that is necessary to obtain consent for ongoing treatment
Only a surrogate consent committee (SCC), however, is authorized to determine the following:
- The administration of any medications that are psychoactive
- The use of behavior procedures that are highly restrictive
The level of responsibility bestowed upon your SDM is considerable.
Surrogate Decision-Making: The Standards
When it comes to making important medical decisions on your behalf, the standard involved in the decision-making process involves carefully considering whether the individual in question –if competent to do so –would consent to the proposed health care. Toward this end, all relevant factors should be considered, including:
- Your prior statements regarding your medical care and treatment
- The express wishes you communicate (even if shared after being declared incompetent)
- Your religious or moral views in relation to medical treatment and/or the dying process
- Your prognosis if you receive no treatment
- Your prognosis in relation to one treatment over another
- The risk involved with the treatment proposed
- How intrusive or severe a proposed treatment is
- Your capacity to cooperate and assist with therapy post-treatment
- The wishes of your family and friends (if you would have been influenced by them)
- The Best-Interests Standard
If your surrogate decision-maker is unable to make a determination in good faith regarding whether or not you would consent to the proposed treatment if you were able to do so, the best-interests standard applies. This amounts to only providing consent when the treatment in question is determined to be in your best interests.
An Experienced Estate Planning Attorney Can Help with Your Surrogate Decision-Maker Concerns
If you are asking yourself when a family member serves as a surrogate decision-maker, the dedicated estate planning attorneys at Ibekwe Law, PLLC in Texas can not only help answer this question directly but can also help you make well-informed decisions regarding your advance directives (which are a far better option). To learn more about how we can help, please do not wait to contact or call Ibekwe Law at 512-505-2753 today.