By Cozette Vergari
Originally published in LOS ANGELES LAWYER / NOVEMBER 2007
THE RIGHT TO MAKE HEALTHCARE DECISIONS is a protected individual right held solely by the patient. Recently, federal law and state law expanded the scope of exclusivity of this right to the privacy realm by limiting the sharing of patient information and records. Thus a patient’s spouse, domestic partner, and other family members face increasing obstacles when they seek information from the patient’s records-even though some healthcare providers, perhaps motivated by compassion, are disregarding the legal restrictions.
Nevertheless, spouses, in particular, should be very clear about their ability to make healthcare decisions on behalf of their partners. Spouses often assume that when their husband or wife becomes incapacitated and unable to make medical decisions, they have an automatic right to step into the shoes of their spouses. A patient’s incapacity-his or her inability to understand the nature and consequences of a decision or communicate a decision-may be temporary or permanent. Under either circumstances, the patient’s spouse is not statutory authorized to be first in line to assume the power to make healthcare decisions for the incapacitated patient.
Indeed, the Probate Code statutes applicable to medical decisions grant no such power to spouses. The code only places a spouse inside the category or class of “family members,” with no priority expressly stated for the spouse. Though many healthcare facilities and providers may create a hierarchy within the class of family members and place the spouse at the top, there is no exclusive legal right for a spouse to make healthcare decisions for his or her incapacitated spouse.
It is well-established in case law that marital status alone does not create agency between the spouses. Nevertheless, spouses are ﬁduciaries under the law and owe a duty to one another. Still, this duty is not accompanied by a spouse’s authority to act as an agent in making healthcare decisions on behalf of his or her spouse.
Since a spouse has no express successor right to a patient’s right to make his or her own medical decisions, all family members have equal standing in the choice of treatment. A family member may challenge a spouse’s choices as not being in the best interest of the patient. It is even possible that a family member other than the one challenging the spouse may be given the right to make healthcare decisions on behalf of the patient. To further complicate matters, when a patient becomes incapacitated and a spouse’s decisions are challenged by a family member, or family members cannot reach a unanimous decision, or the choices made by the spouse or family members are not deemed by healthcare providers to be in the best interest of the patient, the healthcare providers may ultimately make those decisions. The power may not only shift away from the patient’s spouse but also from the patient’s entire family.
In an emergency, these issues too often lead to a crisis. All parties are frequently unprepared. A spouse facing an unanticipated need to make serious medical decisions for his or her spouse faces an overwhelming burden. The chaotic atmosphere can lead to the healthcare providers assuming the power to make the necessary decisions. By contrast, a patient facing a scheduled surgery has the time not only to consider the issue of future healthcare decisions but also to choose to relinquish decision-making power, should the need arise, through a written or oral assignment to an agent or surrogate. It is an option that many clients should consider long before any medical care is required or contemplated.
Our next segment of this topic will cover AHCDs, Surrogacy, and Conservatorship.
Cozette Vergari, founder of Vergari & Associates, practices estate planning and family law. She and her staff assist clients in the preparation of wills, trusts, advance healthcare directives, deeds, and powers of attorney, as well as probate and family law proceedings throughout the County of Los Angeles court system.