Under Section 54.1-2986 of the Virginia Code, if you have been found to be incapable of making an informed decision and:
1. you have not made an advance directive, or
2. the instructions in your advance directive do not address the health care for which authorization is needed and there is no agent with authority to make decisions for you about the health care in question (either because you did not appoint an agent, or you terminated the appointment, or you have protested the continued authority of your agent, or your Advance Directive does not give the agent explicit authority to make decisions for you about the health care in question), then
the attending physician may seek the authorization of any of the following persons, in the specified order of priority (that is, you cannot go to the available person(s) in the lower ranking group unless there is no one available in the higher ranking group), to make health care decisions on your behalf:
1. Your court-appointed guardian; or
2. Your spouse (except where a divorce action has been filed and the divorce is not final); or
3. Your adult child(ren); or
4. Your parent(s); or
5. Your adult brother(s) or sister(s); or
6. Any other relative(s) in the descending order of blood relationship; or
7. “Any adult, except any director, employee, or agent of a health care provider currently involved in the care of the patient, who (i) has exhibited special care and concern for the patient and (ii) is familiar with the patient's religious beliefs and basic values and any preferences previously expressed by the patient regarding health care, to the extent that they are known.” (See Section 54.1-2986(A)(7).
a. How an “involved” non-relative is chosen: If you have no guardian, and there are no relatives available, but there is an involved non-relative who is willing to make decisions for you, the decision that this person meets the criteria set out in paragraph 7, and can therefore make health care decisions for you, can be made by (i) a quorum of the “patient care consulting committee” (defined in § 54.1-2982) of the facility where you are receiving health care; or (ii) if such a committee does not exist, or if a quorum of the committee is not reasonably available, then two physicians who (1) are not currently involved in your care, and (2) are not employed by the facility where you are receiving health care, and (3) do not practice medicine in the same professional business entity as your attending physician. Whoever makes the decision to designate this person as having authority to make health care decisions for you must document the information that is used to support this decision.
b. Limits to the authority of the “involved” non-relative: Section 54.1-2986(A)(7) specifically provides that this person cannot make decisions for you “in cases in which the proposed treatment recommendation involves the withholding or withdrawing of a life-prolonging procedure”.
This Can Be Very Messy
Family Conflict
If, under Section 54.1-2986 the decision-making authority falls to your adult children, or your parents, or to the remaining relatives (if there are no available adult children or parents), and there is conflict among these decision-makers, this section allows the doctor to rely upon the decision of “a majority of the reasonably available members of that class.” While this provides some guidance and protection for the doctor in going forward with treatment, it places a huge burden on the doctor, especially in determining whether family members are “reasonably available”. It’s impossible to predict how family members might end up arguing over what health care is right for you, but it’s easy to see how such arguing can disrupt the family and threaten the treatment process itself. Therefore, it’s very important that you use the Advance Directive to clearly communicate your desires regarding your care, and, where possible, to appoint an agent.
“Available, Willing and Capable” Decision-Maker Needed
Section 54.1-2986(A) states that the substitute decision-maker for an incapacitated person must be someone whom the health care provider is “aware of” and is “available, willing and capable” of making decisions for the incapacitated person. The statute does not specify what, if anything, the health care provider must do to become “aware of” available, willing and capable relatives (or interested non-relatives) who can act as substitute decision-makers. There can certainly be claims by relatives that they were wrongfully kept out of the decision-making process because no effort was made to contact them. In addition, no standards are set out in the statute for determining whether an available and willing relative is also “capable” of making decisions for the incapacitated person. The determination by a health care provider that a person is “capable” or “incapable” can lead to further conflict.
Guardianship
Any person can petition the local Circuit Court seeking appointment of a guardian for you to make decisions regarding your care. The guardianship process can be lengthy and costly, especially if there is conflict among the family members over your condition, your care, and who should be making decisions for you. The provisions in the Virginia Code regarding guardianship begin at Section 37.2-1000.
If You Protest Proposed Health Care
If substitute decision-makers make a decision to approve the providing, withdrawal or withholding of health care for you under Section 54.1-2986, but you protest that decision, in your incapacitated state, the consequences are the following:
- If the decision has to do with providing, withholding or withdrawing life-prolonging procedures, your protest must be honored. See “Protesting Care” and Section 54.1-2986.2.
- If the decision has to do with mental health care, your protest must be honored. Treatment can be provided over such protest only through other legal mechanisms authorizing such treatment (for example: involuntary commitment, or emergency treatment authorized by statute or regulation). See Section 54.1-2986.2.
-If the decision has to do with physical health care (not related to end-of-life care), the decision of the agent can be followed if allthree of the following occur:
1. your agent’s decision is based on your known beliefs, values and preferences, as expressed in the advance directive, and
2. the care involved is found and documented by your treating physician to be medically appropriate and otherwise permitted by law, and
3. your agent’s decision has been “affirmed and documented as being ethically acceptable” by your health care facility’s patient care consulting committee, if one exists, or otherwise by two physicians not involved at that time in your care or in the decision about whether you are incapable of making an informed decision about that care. (See Section 54.1-2986.2)
If You Protest the Substitute Decision-Maker
Under Section 54.1-2986.2(E), if you protest the authority of the relative (or interested non-relative) identified under Section 54.1-2986(A) to make health care decisions for you, then that person immediately loses all authority to make health care decisions for you, even though you are incapacitated at the time you make that protest. (Remember: protesting the person who is approving the proposed treatment is different from protesting the proposed treatment [which is addressed in the section above]). When this happens, the health care provider must then identify another person, according to the priority list set out in Section 54.1-2986(A), to make decisions for the incapacitated person. Yes, it is possible that an incapacitated person could protest all of the willing and capable people who are available to make health care decisions for that person. In that event, health care providers must file a petition seeking judicial authorization for proposed treatment under Section 37.2-1101, or must file a petition seeking appointment of a guardian for the incapacitated person, under Section 37.2-1001, et seq.