“Health Care Directive Protects Personal Choice”

Only one thing is important if you’re reading this post:  if you want to have a say in your medical treatment when you are unable to communicate on your own, appoint an agent through a Health Care Directive!  It’s easy, inexpensive, and critically important.

Recently, Minnesota Courts have been examining the role of court-appointed guardians and have determined that a court-appointed guardian who has been granted the medical consent power over a ward under Minn. Stat. § 524.5-313(c)(4)(i) is authorized without further review and authorization from a court to withdraw life-support systems (absent objection from an interested party, and with the advice from available family members, physicians, and hospital ethics committees).

(Court of Appeals Opinion)    http://mn.gov/lawlib/archive/ctappub/1307/opa122179-072913.pdf

Hold on, however, because the Minnesota Supreme Court has agreed to hear an appeal. For those of you who are interested in reading the Court of Appeals opinion that overturned the District Court’s Order from last year, I’ve offered the link above. The opinion spends a lot of time referring to the pertinent Minnesota Statute, so I’ve provided a link to that as well.

(Minn. Stat. § 524.5-313 – Powers and Duties of Guardian)    https://www.revisor.mn.gov/statutes/?id=524.5-313

What does this mean for you? Well, if you already have a Health Care Directive (HCD) and have named an agent to make decisions for you when you are unable to, it means nothing. That person will be allowed to make those decisions for you. You may find this post interesting from a policy point of view.

For those of you who don’t have an agent appointed through a HCD, depending on your family/friend situation, you may have a court appointed Guardian who will now make those decisions for you. For you, I encourage you to exercise your Constitutional right and power of personal choice and appoint an agent by creating a HCD. You can ask your attorney to assist you with this, or you can do it yourself by downloading a form and following the instructions.

Court-appointed guardians, in and of themselves, are not what give me pause. When a Court appoints a Guardian, they take the matter very seriously and appoint willing people from your family/friends, or, in the absence of those options, they appoint a professional guardian. That person usually has a good deal of experience and is trained to know both the law and to think for his/her ward with the greatest care and deliberate reflection. My concern is for the small percentage of people we sometimes refer to as the unbefriended (people who are commonly elderly, but not always, and have no family or friends or support system of any kind to speak for them). These are the people who may find themselves with a Guardian, having not named a HCD agent and having no one who will speak for them.  This person who COULD speak for them would be considered an interested party. Further, no available family members could mean you have no family, or it could mean that the family you have doesn’t want to get involved.

If an unbefriended person finds him or herself in this position, that means that there would, by default, be “no interested parties, and no advice from family.”  That means that the doctors, the ethics committee and the Guardian are flying blind, having never met or known you prior to your state of incapacity and having no instructions about how you would like to be treated per your HCD. Unless the Minnesota Supreme Court decides otherwise, there would be no moment of reflection by a Court to ponder what your wishes are in this situation. As it turns out for the subject of the recent Court of Appeals opinion, his Guardian was permitted to terminate his life support, supported by the Court of Appeals interpretation of the statutes.

So, once again, only one thing is important if you’re reading this post:  if you want to have a say in your medical treatment when you are unable to communicate on your own, appoint an agent through a Health Care Directive!  It’s easy, inexpensive, and critically important.