If you are not capable of making a health care decision for yourself, someone will have to make the decision for you.
When making health care decisions for you, the law says your representative under a representation agreement must (in this order):
Determine and comply with your current wishes, if it’s reasonable to do so.
Comply with the wishes you expressed when you were capable. If you had a MOST conversation with your doctor when you were capable, what’s written in the MOST should represent “wishes you expressed when capable.” Legally, your representative must consider these wishes, along with other any other wishes or instructions you expressed when capable. For example, you may have written these in an advance care plan or spoken to your representative.
If your wishes are not known: act based on your known beliefs and values.
If your beliefs, values and wishes are not known: act in your best interests.
A temporary substitute decision-maker
A temporary substitute decision-maker is a person who will be temporarily appointed to make a specific health care decision for you. They’ll only be called on if you don’t have another authority in place that addresses the health care need. They may be called if you have a representative under a representation agreement who is not available.
When making a decision on your behalf, the decision-maker must consult with you, if possible. The law says they must also follow any wishes or instructions you expressed when you were capable.
How does a MOST fit in here? If you had a MOST conversation with your doctor when you were capable, what’s written in the MOST should represent “wishes you expressed when capable.” The decision-maker should consider these wishes, along with other any other wishes or instructions. You may have expressed in an advance care plan or to them directly.
If your wishes aren’t known, the decision-maker must give or refuse consent based on your best interests. This includes considering your current wishes, and known beliefs and values. It also includes considering the risks and benefits of the proposed health care.
We have more in-depth coverage of temporary substitute decision-makers.