A patient’s right to participate in medical decision making through the informed consent process does not cease because the patient lacks decision-making capacity. If the health care provider determines that the patient lacks capacity, the patient’s right can transfer to the patient’s designated agent, acting under a health care power of attorney. An agent’s authority is not limited, as many assume, only to cases where the patient has a terminal condition. It is not limited to decisions affecting only the patient’s end-of-life care, including the withdrawal or withholding of that care, unless the health care power is so limiting. Rather, an agent acting under a power of attorney can make health care decisions for the patient whenever the patient is unable to make a health-care decision.
Because an agent has such broad authority to act, a patient should act wisely in selecting an agent. There are many available health care power of attorney forms that can be used to name an agent. But, most of them are deficient in their failure to provide the agent adequate information about the patient’s wishes and values the agent should consider when making health care decisions for the patient. For example, how important is it to the patient to be able to verbally communicate with others? Is it so important that the patient would not want the agent to consent to a procedure with a high risk that the patient could lose that ability?
Health care providers should encourage a patient to communicate wishes and values to the agent (either in the power form or orally). This is the best way to assure the agent makes that decision the patient would have made if the patient had decision making capacity. Importantly, agents who often have to make difficult decisions for a patient can be psychologically benefited when the patient has communicated wishes and values to guide the agent’s decision, because the agent now knows the agent is carrying out the patient’s health care preferences rather than the agent’s own.
