Q&A: Communicating with a Patient's Decision Maker

Q: How should case managers communicate with a patient when he or she lacks decision-making capacity but has no court-appointed guardian or power of attorney (POA)?

A: If a patient lacks the capacity to fully understand the impact of what he or she is signing, it is too late to execute a financial POA document. The last resort is asking the court to appoint a guardian or conservator over the patient’s financial affairs.

However, there may be a way to avoid asking a court to name a guardian of person if your state has a surrogate decision-maker law, also known as a healthcare proxy law. This law outlines a hierarchy of decision-makers in the absence of a guardian or POA when a patient lacks decision-making capacity. The hierarchy of decision makers is similar to the following:

• Spouse (or domestic partner in some states)
• Adult child (usually does not specify which one)
• Parent
• Adult sibling
• Other competent adult (friends, cousins, other relatives, etc.)

Occasionally, there is no one found who is able or willing to be the surrogate decision-maker for the patient, at which point petitioning the court for guardianship may be the only option.

For more information, see the Case Management Patient Communication Toolkit.

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