In past posts we have talked about the situations that might arise that would require someone else to make health care choices for you if you couldn't give informed consent and the kind of choices that they might have to make.  In upcoming posts we will discuss how to plan to have the right person make these choices and how to make sure they get enough instruction to do the job well.  But before we get to that, we thought it would be helpful to explain what happens if you don't make a plan.  In Washington those choices are governed by Statute, specifically RCW 7.70 which is commonly known as the "consent statute." 

 
Under Washington law, if the patient is incapacitated and cannot understand and/or communicate to give informed consent to give or decline a medical treatment, your medical provider must turn to someone else to make that decision.  Washington has a statute that gives a list of people who can provide that consent.  RCW 7.70.065

That statute states that members of the classes of people can provide such consent in the following order of priority:
     (i) The appointed guardian of the patient, if any;
     (ii) The individual, if any, to whom the patient has given a durable power of attorney that encompasses the authority to make health care decisions;
     (iii) The patient's spouse or state registered domestic partner;
     (iv) Children of the patient who are at least eighteen years of age;
     (v) Parents of the patient; and
     (vi) Adult brothers and sisters of the patient.

If the health care provider makes reasonable efforts to locate and secure authorization from a competent person in the first or succeeding class and cannot find that person, authorization may be given by any person in the next class in the order of descending priority. However, no person under may provide informed consent to health care:
     (i) If a person of higher priority under this section has refused to give such authorization; or
     (ii) If there are two or more individuals in the same class and the decision is not unanimous among all available members of that class.

The people named in the statute are suppose to do what they believe the patient would have wanted if that can be determined. If they cannot determine that, then to do what they believe to be in the patient's best interests.

For people who do not engage in advance planning this statute creates a number of pitfalls.   

Without a health care agent named in a proper durable power of attorney, many clients will not have surviving family in any of these categories so that their medical choices can only be made with the appointment of a legal guardian.

The people listed in the statute may not be the right people to make choices for them, especially if they are not close to members of their family of origin or if they have very different opinions from them on issues surrounding health care.

There may be more than one person in the relevant category who do not agree, that is common when parents, adult children, and siblings must make unanimous decisions.

Even if every person in the highest category agrees, family members, friends, or other interested parties can always try to override that decision my seeking to be appointed as the person's guardian, which is what has happened in many of the highly publicized family fights over end of life issues in recent years.   Because hospitals know that this can happen, some will want to wait to make decisions in cases without advanced planning until everyone with a possible interest agrees, this can lead to delays in providing or withdrawing care even in cases where no guardianship petition is ever filed.

The decision maker(s) also may have no idea what the client would want them to decide.  That can lead to them making the wrong choice or, even if they are making the right choice, experiencing real agony about not knowing that they are.

These problems can best addressed by selecting a health care agent and appointing them in a Durable Power of Attorney for Heath Care and preparing an Advanced Health Care Directive, Advanced Mental Health Care Directive, or POLST as needed.

If you would like more information on how the consent statute might work in your particular case, are having trouble getting a health care provider to honor your role in the statute, wish to file a guardianship because the statute is resulting in the wrong decisions being made, or you want to create a plan to avoid the problems described above, contact us for a free 1/2 hour consultation at [email protected].

Informed Consent:
Consent by a patient to a surgical or medical procedure or participation in a clinical study after achieving an understanding of the relevant medical facts and the risks involved.  

Ideally informed consent would always come from the patient themselves.  In reality, more than 90% of us will go through a period where important medical choices must be made but where we lack the capacity to give it due to either an inability to understand the relevant facts or risks or an inability to communicate their wishes.   The best way to make sure that in such a circumstances the right choices would be made by the right person it is vital that adults make and regularly update their disability planning for heath care.  

At Phinney Estate Law, disability planning for health is included in all estate plans and offered as a stand alone service.  To learn more contact us for a free consultation at [email protected] or (206) 459-1908.