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We recommend that our clients consider who they would want to be health care surrogate for them in the event that they are not able to make health care decisions for themselves. Once they have made the decision, it is documented in an Advance Directive for Healthcare that includes the Designation of Health Care Surrogate.

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Effective October 1, 2015 you can provide in your document that your Health Care Surrogate will be able to act immediately by assisting in making health care decisions for you, and by accessing your health care information. As long as you are capable of making your own health care decisions, your own health care decisions take precedence over decisions made by the surrogate that present a material conflict. Alternatively, you may limit your surrogate to act only in the event that you are incapacitated or incompetent to make your own health care decisions and to direct your own health care treatment (i.e., your inability to communicate a health care decision or to provide informed consent), as determined by your physician.

When the health care surrogate receives such notification, he or she often feels at a loss as to how decisions should be made. Some believe that the only type of decisions that surrogate would be making would be whether to discontinue life support. However, there are a host of other decisions that the surrogate may be asked to make. In all likelihood, the surrogate will be in a difficult emotional state watching a loved one experience difficult health challenges. It is often difficult to make the kind of reasoned decision that the statute contemplates. Some may not even be aware of the standard that the law requires in these circumstances.

The law requires that the health care surrogate use the “substituted judgment” standard: the surrogate must make the decision for the principal which he or she believes the principal would have made under the circumstances if the principal were capable of making decisions. In order to use this standard, the surrogate should have had some frank discussions with the principal in order to understand what types of decisions he or she would make. The proper use of this standard may also involve having conversations with family members or close friends if the surrogate did not have first hand knowledge about what decisions the principal would make.

Only in the event that there is no indication of what the principal would have chosen may the surrogate use the “best interest” standard. Those who are uninformed about the appropriate standards, usually start with what they believe to be in the principal’s best interest, rather than applying the proper “substituted judgment” standard.

We recommend that all of our clients have in-depth and frank discussions with their surrogates so that the surrogate can make appropriate decisions if they are called upon to act.