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Alternatives For Making Healthcare Decisions When You Are Unable: The Difference Between Advanced Directive, Surrogate Decision Maker, And Guardianship

On Behalf of | Dec 20, 2017 | Wills, Trusts, Estate Planning and Administration

A written and properly signed power of attorney for healthcare, part of New Hampshire’s Advanced Directives, allows a person to delegate to an agent the authority to make healthcare decisions on their behalf in the event the person is unable to make healthcare decisions for himself, either due to permanent or temporary lack of mental capacity.  The agent would be able to discuss the person’s medical records with his doctors, discuss treatment to assist in his recovery, and make treatment decisions for him, including whether or not to continue life sustaining treatment in the event that he is near death or permanently unconscious.  The power of attorney for healthcare allows the person to give the agent the opportunity to discontinue life sustaining treatment, or, in the alternative, he can restrict his agent’s ability to do so and thereby directing that he stay on life sustaining treatment no matter what.

The Living Will is also part of New Hampshire’s Advanced Directives, which directs his attending physician or Nurse Practitioner to provide, withhold, or withdraw life-sustaining treatment in the event that he is near death or permanently unconscious.

Both of these documents allow him to make certain end of life medical decisions now, while he is competent, which can be used as a guide for his agent in the event that his agent needs to act.

In the event that the person did not pre-plan and execute a power of attorney for healthcare, his executed power of attorney for healthcare is not valid, or the appointed agent is no longer living or is unable to act as the agent, the healthcare provider is required to look for an appropriate surrogate decision maker. This can be any number of people. A surrogate decision maker is an adult individual who has healthcare decision-making capacity, is available upon reasonable inquiry, is willing to make healthcare decisions on behalf of a patient who lacks healthcare decision-making capacity, and is identified by the attending physician or Nurse Practitioner. Some of those who are possible surrogate decision makers include, in order of priority, the patient’s spouse, an adult child, parent, sibling, adult grandchild, grandparent, adult uncle, aunt, niece, or nephew of the patient, a close friend of the patient, an agent with financial power of attorney over the patient, or the guardian of the patient’s estate.

The person’s healthcare provider is responsible for determining whether or not the chosen surrogate decision maker is willing and able to act, as well as to make sure that there is not a power of attorney for healthcare agent or a legal guardian available.  Once a surrogate decision maker has been approved by the healthcare provider, the decision maker will have the authority to make healthcare decisions for the patient after the surrogate’s name and contact information has been recorded in the patient’s medical records.

Sometimes there will be multiple potential surrogates at the same level, such as multiple adult children; in that case it would be their responsibility to come to an agreement as to what medical treatment should be given.  In the event that multiple surrogates disagree with each other regarding the healthcare decisions that need to be made for their parent, the majority of the opinions of those particular surrogates will control.  In order for a dissenting surrogate to get over that hurdle, he or she must begin a guardianship proceeding in the probate court and petition for guardianship over the incapacitated person.

There are two types of guardianships, a guardian of the person, meaning that the guardian appointed by the court has responsibility for the care and custody of the incapacitated person, and a guardian of the estate, meaning the guardian appointed by the court manages the estate, or finances, of the incapacitated person.  In most cases, in order for the court to grant a guardianship, the court must first determine that the person is incapacitated because his rights and freedom are at stake. The State of New Hampshire puts a high value on a person’s ability to act on their own and make their own decisions if they are able.

Any relative, public official, or interested person, or any individual on his own behalf may file a verified petition for finding of incapacity and appointment of a guardian of a person and estate, or the person, or estate.  Most people have a family member as their guardian, but some have a professional guardian or a guardian through a public guardianship and protection program.  There are numerous rights and responsibilities that guardians have, which are laid out in New Hampshire’s Guardianship Statute (NH RSA 464-A).

Another estate planning document offered in New Hampshire is the Nomination of Guardian, which represents your wishes on who you would want to act as your guardian if that time should come. The person you name is given preference by the Court if multiple people petition the Court to act as your guardian so you can have the peace of mind in knowing that the person you would want to act as your guardian would be able to do so, as long as the Court determines they are fit to take on that responsibility.

In order to assure that your healthcare wishes are followed, make sure you have a power of attorney for healthcare, otherwise, another person may have to interpret what your healthcare wishes are in the event that you are incapacitated, and their decisions might not be what you wanted for yourself.

Andrea Nelson is an attorney at Hamblett & Kerrigan who focuses her practice in the area of estate planning, including wills, trusts, health and financial powers of attorney.  Attorney Nelson can be reached at [email protected].