Due to the nature of my job, I have to spend a lot of time dealing with what happens when people don’t have a surrogate medical decision maker in place. A surrogate decision maker makes the calls in the case you are unable to make your own health care decisions, i.e. if you were in an accident and needed someone to consent to a surgery or you have a cognitive disorder. In the state of Utah, if you don’t have an advanced health care directive (a type of power of attorney specific to medical decisions), your legal spouse is automatically the surrogate decision maker. If they are not available or you don’t have a legal spouse, your family get to make the decision in the following order with the family members on top getting priority:
If none of these individuals are available, anyone over the age 18 who has the capacity to make decisions, has exhibited concern for the patient, knows the patient’s values, and is available to make decisions can serve as a surrogate decision maker.
This is something we in the polyamory community need to be particularly aware of. During a health crisis, if you don’t have proper measures in place, individuals you care for the most may not be able to take part in decisions regarding your care if someone with higher priority is present. Life or death decisions can be made by family you may no longer share the same values with. However, if no family is available, a partner does have the legal right to make healthcare decisions.
An advanced health care directive is really easy to fill out and lets you declare exactly what you want to happen to you in case of a healthcare emergency. There are options to list several individuals. It’s important to note that like a power of attorney, an advanced healthcare directive can only be completed by an individual who has the capacity to make decisions.
If an individual is to the point they can no longer make decisions, they can no longer sign an advanced healthcare directive. Also, an advanced healthcare directive does not allow you to hold someone against their will, i.e. if you have a family member who can no longer care for themselves but refuses to accept a higher level of care. A guardianship is necessary to make decisions like placing an elderly relative in a skilled nursing facility when they do not want to go. Guardianship is a legal proceeding that requires medical documentation determining an individual cannot make decisions based on diagnoses like intellectual disability or dementia. The individual must also be represented by an attorney at a hearing. Guardianship is a last resort because it literally takes someone’s rights away.
No one likes to think about the possibility they or a loved one may be in a situation to warrant a surrogate decision maker but trust me. I know from experience not having a plan is only going to make a tragic situation worse.