When a person no longer has the ability to make healthcare decisions for himself and does not have a guardian or an advance health care directive, the designation of a surrogate may be necessary. In Hawaii, the Uniform Health-Care Decisions Act (Modified) (codified under Hawaii Revised Statutes Chapter 327E) governs advance health care directives and outlines a process for designating a surrogate decision-maker (a.k.a health care proxy). In the U.S., only approximately 1/3 of the population has an advance health care directive.
The easiest way for a surrogate to be appointed is for a patient to do it herself. Under Hawaii Revised Statutes Section 327E-5(a), a patient may simply tell a healthcare provider that she wants a particular individual to be (or not be) her surrogate. The surrogate may then make decisions on the patient's behalf if the patient is determined to lack capacity to make her own decisions.
If a patient is determined to be incapacitated, the primary physician (or the physician's designee) must make reasonable efforts to tell the patient she lack decisional capacity to provide informed consent or refuse medical treatment. The physician then must make reasonable efforts to locate as many interested persons as possible and the physician may rely on those interested persons to locate other interested persons to inform them of the patient's condition. As an aside, Hawaii Revised Statutes Section 327E-2 defines "interested person" as the patient's spouse, a reciprocal beneficiary, adult child, the patient's parents, adult child or adult grandchild or any person who has shown special care for the patient and is familiar with the patient's personal values.
Some states have legislated which interested person has priority to act as the patient's surrogate, but Hawaii's surrogate law is somewhat unique. Hawaii Revised Statutes Section 327E-5 states that interested persons shall reach a consensus on who shall be the surrogate to make healthcare decisions on behalf of the patient. The surrogate should be a person who has a close relationship with the patient and knows the patient's wishes about healthcare decisions.
While it's ideal when the patient's family and/or friends are in complete harmony, disagreements are sometimes inevitable. If even one interested person does not agree with the selection of the surrogate, any of the interested persons may go to court and petition for a guardianship. Doing so will delay the ability to address the patient's condition since a contested guardianship proceeding is not a quick or inexpensive process.
Furthermore, an interested person may still go to court to seek a guardianship even after a surrogate has been selected if any of the interested persons disagrees with the decision of the surrogate. In other words, although a person may have been designated as a surrogate by all interested persons, the surrogate does not have the absolute final say on health care decisions for the patient. In effect, consensus must be reached by all interested persons for decision-making.
This consensus decision-making system works if all interested persons agree on a surrogate and the decisions the surrogate makes, but if not, going to court to obtain a guardianship, a proceeding which will likely be contentious and expensive, is the unattractive alternative. Given the distinct possibility that not all interested persons may agree on a course of action, it is difficult to overstate the value of having an advance health care directive that names an agent to act on your behalf and provides clear health care and end-of-life instructions that reflect your own desires and wishes.
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
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