Although physicians can determine that a patient is psychologically incompetent (i.e., lacks decision-making capacity), only judges can determine that a patient is legally incompetent (i.e., lacks decision-making authority). When physicians or hospitals petition for guardianship, they believe that the patient cannot act in her own best interest and that her right to direct her own affairs should therefore be preempted (at least as far as health care is concerned). The guardianship process requires a judicial hearing during which the patient has the right to be present, to engage counsel, to offer evidence, and to cross-examine witnesses. If the judge finds that the patient’s cognitive capacity meets the legal definition of incompetence, a guardian will be appointed.
The Surrogate’s Responsibility The actions of a surrogate decision maker or guardian should be based, if possible, on preferences expressed by the patient when she was competent. Ideally, such preferences will have been recorded in an advance directive and will be clearly applicable to the situation at hand. When instructions of this type are not avail-able, the surrogate or guardian should be guided by the patient’s past values and beliefs. These may be known to relatives and friends but not to individuals who have never met the patient before (a situation that might arise if a social worker at Adult Protective Services is given guardianship of a homeless person whose family cannot be located). When the patient’s preferences and values are unknown, surrogates and guardians should act in the patient’s best interest.
Although these standards are straightforward in theory, they may be difficult to apply in practice. Sometimes, for example, the surrogate role is jointly assumed by the patient’s children. If they agree about her preferences and values, the decision-making process goes well; if they do not, a bitter deadlock can result. Even so “objective” a standard as the patient’s best interest can be difficult to apply, especially when what is best for the patient may not be best for the surrogate.
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PSYCHIATRIC DIMENSIONS OF MEDICAL PRACTICE: COMPETENCE TO REFUSE MEDICAL ADVICE-INVOKING THE LAW: GUARDIANSHIP AND THE SURROGATE’S RESPONSIBILITYAlthough physicians can determine that a patient is psychologically incompetent (i.e., lacks decision-making capacity), only judges can determine that a patient is legally incompetent (i.e., lacks decision-making authority). When physicians or hospitals petition for guardianship, they believe that the patient cannot act in her own best interest and that her right to direct her own affairs should therefore be preempted (at least as far as health care is concerned). The guardianship process requires a judicial hearing during which the patient has the right to be present, to engage counsel, to offer evidence, and to cross-examine witnesses. If the judge finds that the patient’s cognitive capacity meets the legal definition of incompetence, a guardian will be appointed. The Surrogate’s Responsibility The actions of a surrogate decision maker or guardian should be based, if possible, on preferences expressed by the patient when she was competent. Ideally, such preferences will have been recorded in an advance directive and will be clearly applicable to the situation at hand. When instructions of this type are not avail-able, the surrogate or guardian should be guided by the patient’s past values and beliefs. These may be known to relatives and friends but not to individuals who have never met the patient before (a situation that might arise if a social worker at Adult Protective Services is given guardianship of a homeless person whose family cannot be located). When the patient’s preferences and values are unknown, surrogates and guardians should act in the patient’s best interest. Although these standards are straightforward in theory, they may be difficult to apply in practice. Sometimes, for example, the surrogate role is jointly assumed by the patient’s children. If they agree about her preferences and values, the decision-making process goes well; if they do not, a bitter deadlock can result. Even so “objective” a standard as the patient’s best interest can be difficult to apply, especially when what is best for the patient may not be best for the surrogate. *69\172\2*