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Legal Decisions

By Oren Traub, MD, PhD, Departments of Internal Medicine and Adult Hospital Medicine, Pacific Medical Centers

Legal decisions may involve

Living wills

A living will expresses, in advance and in writing, a person's instructions or preferences about future medical treatments, particularly at the end of life, in case the person becomes unable to make health care decisions. It spells out what care the person would want under different circumstances. It can and should include preferences for resuscitation.

Durable power of attorney for health care

An illness may prevent people from communicating or understanding what is happening to them. Thus, all people over 18 years old should designate a person to make medical decisions on their behalf (sometimes called a health care agent) in a document called a durable power of attorney for health care. This document is necessary in addition to a living will because a living will cannot cover all possible situations. Thus, in some situations, someone is needed to use judgment to determine the care the incapacitated person would want.

The legal authority to make medical decisions on a person's behalf is different from a durable power attorney for financial decisions, which allows someone to make financial transactions on a person's behalf.

The agent with durable power of attorney for health care can make medical decisions on behalf of a person only when the person is unable to communicate—for example, because the person is unconscious or has a medical condition that causes confusion. The agent should be someone the person trusts and is usually a family member or close friend. Giving only one person this authority is helpful. If it is given to several people, they may disagree with each another about medical decisions.

A person can revoke the DPOA-HC or give it to a different person at any time.

The agent is legally bound to follow the person's treatment preferences to the extent that the agent knows about them. Therefore, people should tell their agent what they would like done in certain circumstances.

Laws differ from state to state as to how the document is prepared. The web site for each state's medical association has additional resources about how to prepare a durable power of attorney for health care and what issues people should consider. Other helpful resources include the primary care practitioner, the family lawyer, or a hospital social worker.

If a person has not designated a durable power of attorney for health care and is unable to communicate, doctors ask the person's next of kin to help make decisions on the person's behalf (see Default Surrogate Decision Making).

Informed consent

Before doing an invasive diagnostic test or providing medical treatment, doctors must obtain informed consent from the person who is having the test or treatment (or the person named in the durable power of attorney for health care document). For consent to be informed, doctors must discuss the following in a way the person can understand:

  • What the test or treatment involves and why it is being recommended

  • What the benefits and risks of the test or treatment are

  • What alternatives are available and what their risks and benefits are

  • What are the risks and benefits of not having the test or treatment are

If the person agrees to proceed with the test or treatment, doctors ask the person to sign a form indicating that the person received the appropriate information.

Doctors do not formally talk with people about inserting routine intravenous (IV) lines, taking x-rays or CT scans, or prescribing routine drugs (such as antibiotics) beforehand. However, people can ask their doctors about the common side effects of any test or drug.