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Surrogate Decision Making

Some of the information below is from The Guardianship Handbook published by the University Of Maryland School Of Law.

If a person is no longer capable of making medical decisions and did not appoint a health care agent through an Advance Directive, a surrogate decision maker can consent to medical care. A surrogate is a substitute, or a proxy, who acts on behalf of the person in need of medical care and decision-making.

The Maryland Health Care Decisions Act sets out the circumstances under which someone else can make medical decisions for a person who is unable to make these decisions for him or herself. The law allows the individuals noted below to be surrogate decision makers, after two physicians have certified in writing that the person is incapable of making medical decisions. Individuals may function as surrogates in the following order of priority:

  • A guardian previously appointed by the court
  • A spouse or domestic partner
  • An adult child
  • A parent
  • An adult sibling
  • A close friend or relative, who is 18 years or older, competent and can prove and document that he or she is familiar with the individual's activities, health and personal beliefs. In addition, a statement must include how long the friend or relative has known the individual, how frequently they have contact and what he or she knows about the individual's beliefs and wishes.

Disputes Among Surrogates

Frequently more than one individual qualifies as a surrogate decision maker on the priority listing (for example, three adult children). Since they would have equal decision making authority, if these individuals are in disagreement about the person's health care it is necessary to have a third party intervene. The patient care advisory committee in the hospital or nursing home can investigate, negotiate and advise the surrogates and the doctors. If this does not resolve the dispute, guardianship may be the only alternative.

Scope of Authority

A surrogate can give an informed consent for all medical decisions the person may need, except under the following circumstances:

  • The treatment is sterilization.
  • The person needs psychiatric treatment.

Liability

A surrogate is not responsible for any of the person's medical costs simply because the surrogate is making medical decisions, nor is the surrogate liable for the consequences of any decision he or she makes. The law protects the surrogate for any errors in judgment.

Standards

When making medical decisions for another, the surrogate must follow certain guidelines or standards.
Substituted Consent
Like a guardian, the surrogate should attempt to make decisions based on what the person would have wanted. (This is called using the standard of substituted consent.) To do this it is helpful to consider the following factors:

  • The person's current diagnosis
  • The prognosis (the likely outcome or course of a disease or condition)
  • Any preference the person has expressed about the treatment
  • The person's religious or personal beliefs
  • How the person has felt about similar treatment for another individual
  • Any concerns the person has expressed about the effects of his or her illness and treatment on family or friends

Best Interest

If the surrogate has no information about the person's wishes, the surrogate should use the standard of best interest. When a surrogate uses the standard of best interest he or she must look at the benefits and burdens of treating and not treating. To use the standard of best interest the surrogate must considering the following:

  • The effects of treatment on the physical, emotional and mental functions of the person
  • The pain the person would suffer from the treatment
  • The pain he or she would suffer without treatment
  • The humiliation, loss of dignity and dependency the person is suffering because of the condition or would suffer because of the treatment
  • The effect of the treatment on the person's life expectancy
  • The potential for recovery, with and without the treatment
  • The risks, side effects and benefits of the treatment
  • The religious beliefs and values of the person