Healthcare Decisions for the Protected Person
For more information, see the Legal Guide for the Seriously Ill, (caringinfo.org) published by the American Bar Association.
Health care agents
If the guardian is not the same person as the health care agent designated in an advance health care directive, then the order appointing the guardian should specify whether the guardian or the agent has the authority to make health care decisions for the protected person. If the order is silent or specifies the agent, then the agent makes any health care decisions that the protected person has given to the agent. And the agent has the right to access the protected person's health information under HIPAA (hhs.gov). If there is no health care agent or the order specifies the guardian, then health care decisions are the guardian's responsibility, and the guardian has the right to access the protected person's health information. Utah Code Section 75-2a-112 an Section 75-2a-113.
Communicate with health care providers
Try to establish good, clear communication with the protected person's health care providers. Give to health care providers the information necessary for them to make a diagnosis and treatment recommendation. Ask questions about options and the benefits and risks of a proposed procedure, treatment or medication so that you can make an informed decision.
What would the protected person decide?
If the protected person has an advance health care directive, you must follow it. Utah Code Section 75-2a-112. Otherwise, you should make health care decisions according to the protected person's known values and preferences and what s/he can afford. Keeping one's own values and preferences out of the decision is very important. If you know or believe that the protected person would not want a certain procedure, treatment or medication, you should tell the doctor not to treat the protected person in that manner. Likewise, if you know or believe the protected person would want a particular treatment, you should request the treatment.
Obtain as much information as you can about the protected person's health care preferences. Do this by asking the protected person directly. If the protected person is unable to communicate but has medical directives, like a living will or advance health care directive, then use these to guide your decision. If these documents are not available, ask the protected person's physician, family and friends whether the protected person has expressed health care preferences. If no information is available, consider the protected person's spiritual or cultural beliefs.
Under Utah Code Section 75-2a-102, an adult has the right to:
- reject health care, even if rejecting health care will result in an earlier death;
- be spared unwanted procedures; and
- be permitted to die with a maximum of dignity and function and a minimum of pain.
As guardian, you have the right to express these decisions that the protected person would make.
Best interests of the protected person
If you do not know what the protected person would do or if the protected person never had decision making capacity, you should decide based on what is in that person's best interest. There is no test for deciding the best interests of the protected person, but you may want to consider, among other things, whether s/he has:
- a condition that could be changed for the better if treated;
- the ability to be rehabilitated;
- the ability to communicate with others through speech, eye contract or writing;
- any quality of life, no matter how minimal;
- a disease, the treatment of which would make the person suffer more.
When deciding the protected person's best interests, consider the protected person's personal values as well as medical, ethical, religious, legal and economic issues. Withholding treatment because someone is old or disabled is improper. Even if the person does not have the same quality of life that you might enjoy, you should consider what quality of life is normal for the protected person. If possible, you should make decisions that help that person continue the activities that s/he has done in the past.
Changing health care providers
You have the authority to change health care providers, but, unless staying with the person will cause harm, do so only if that is the decision the protected person would make. If you and the provider frequently disagree on health care decisions, you should consider finding a provider whose views are more compatible with those of the protected person. If you do change, make sure the new health care provider receives all of the protected person's medical records.
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