Who can make health care decisions for you when you cannot make them for yourself, and there is no advance directive?  This is a question most people don’t spend enough time thinking about, considering the importance of the issue. 

I was recently sitting in the reception area of a nursing home when I was approached by an executive type person.  He identified himself as an area manager and asked if there was anything that I thought this facility could improve upon.  “Education,” I said.  “There can never be enough education for staff.”  “What do you mean?” he asked.  I said that, for example, I would place a bet that his staff did not know who could make health care decisions for a person when they could not.  “You can’t be serious,” he said. 

Just then the administrator came into the lobby and so the question was posed to her.  By this time I was a little nervous because I knew it was quite possible that she would not know the correct answer and it would be me that made her look bad.  He asked her, “who makes health care decisions for a person when they cannot and there is no advance directive?”  Without hesitation, she blurted out  "the spouse"... then "the kids"...   Wrong.

The correct answer is that our health care consent law says that when a person cannot speak for oneself and there is no advance directive and no guardianship in place, the spouse, adult children, siblings, and parents ALL have the right to make health care decision for the incapacitated person, AND there is no priority in that group.  This law gives maximum flexibility to the family as a whole but does set up possible conflicts between family members since there is no priority in the decision making group.

I quickly apologized to the administrator saying that I did not mean to put her on the spot – and I did add that many people do not seem to know the answer.  So if you want to try it for yourself, ask this question of the next health care worker you meet and the odds are – they don’t know.