Public Health Law Map - Beta 5 - Medical and Public Health Law Site

to consent to medical care. Conversely, some states do not specifically outline what a
power of attorney may be used for. Although the U.S. Supreme Court has not ruled
that the right to delegate medical decision making is protected by the Constitution, it
has endorsed the use of powers of attorney to consent to medical care. In the absence
of a specific state law or state court decision forbidding the use of a power of
attorney to delegate the right to consent to medical care, this is a valid method of
proxy consent for adults.
The person making the delegation must be legally and medically competent at the
time the power of attorney is signed. These documents are usually notarized, but the
notarization has little legal significance. The notary public may testify only as to the
signer’s identity, not the person’s competency. If the person delegating the power to
consent to medical care has a condition that might affect his or her competency, a
physician, preferably not the patient’s usual attending physician, should evaluate the
patient and swear to the patient’s competence. This should be incorporated into the
power of attorney to forestall attacks on its validity. The person to whom the right to
consent has been delegated must be medically and legally competent to exercise this
right. If he or she is not competent, the patient must be informed and asked to
appoint a new person to consent to care. If both the patient and the person to whom
the right to consent has been delegated are incompetent, then a court order must be
sought to determine who is legally able to consent to the patient’s care. The patient
may appoint an alternate decision maker in the power of attorney and may specify
under what conditions this person will serve.
2. Conflicts of Interest
The person to whom the power to consent will be delegated should not have any
conflicts of interest—emotional, financial, or professional— with the patient. The
most obvious conflict is between the physician and the patient. Although the
physicians caring for the patient certainly have the patient’s best interests in mind,
they cannot both propose treatments and consent to them. Physicians and other
medical care providers should not allow themselves to be given the right to consent
to care by a patient for whom they may have to provide treatment. This does not
prevent physicians’ acting for friends or relatives when their role is to act as the
patient’s advocate.
There are two types of conflict of interest between family members: conflicts related
to loss of objectivity about the medical problems of a loved one and conflicts related
to interests in the property or authority of the relative. For example, assume that a
woman authorizes her husband to consent to her medical care during a severe illness.
When significant treatment decisions must be made, the husband will find it difficult
to put aside his concern for his wife and make objective decisions. He may feel
guilty that she is ill and he is not. He may feel that he has contributed to her illness.
He may even resent her illness and seek to punish her for being ill. The result is
irrational decision making. The husband may blindly accept the proposed treatments
or, less frequently, unreasonably refuse to consent to necessary treatments.
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