CASEYFRANK

Attorney & Counselor

ARTICLES

RELATIVES AS SURROGATES


The essay by attorney Clifton B. Kruse, Jr., entitled "My Son Wanted Me To Die!" [34 The Colorado Lawyer 87 (June 2005)], highlighted a pervasive problem: Family members often make inappropriate medical treatment decisions when they act as surrogates for relatives. Even with the best of intentions, the medical literature reveals that choices by family members have a poor correlation with what their incapacitated relatives actually wanted.


In Kruse's hypothetical case, a son went against his father's wishes while the latter was undergoing surgery. Specifically, the son told the surgeon not to restart his father's heart if it stopped. Worse, the son was angry when the physician ignored him and revived the father. The title says it all: My son wanted me to die. But the father emphatically did not.


That disqualified the son from being a surrogate. Surrogate decision-makers must first apply the standard called "substituted judgment," which is defined as follows: "The agent shall act . . . in conformance with the principal's wishes that are known." (CRS ยง 15-14-506(2)). Either the son knew he was contradicting his father or he advocated against life-saving procedures when he had no basis for doing so. Either way, he was unfit to speak for his father.


There is nothing inherent in family relations that would make relatives superior surrogates. Our relatives may know us best, but they also may have the biggest conflicts of interest. That's why, for example, a potential beneficiary such as the son in this case could not legally witness his father's living will, and could not sign it on his behalf. (CRS §§ 15-18-105 & 106.)


Similarly, if a patient had not explicitly appointed a decision-maker before incapacity, a relative would have no priority to being named a surrogate after the fact, called a proxy. The criterion is that the proxy should be one "who has a close relationship with the patient and who is most likely to be currently informed of the patient's wishes." (CRS § 15-18.5-103(4)(a)). The proxy may be a relative, but instead it may be a friend, a lover, a neighbor, or someone else.


Kruse's essay also suggested having the son and his wife make joint decisions. However, that arrangement could lead to dispute and deadlock just when a decision was most needed. It is better to have a single decision-maker, and a backup, who serves in the alternative but not in parallel.


Advances in medical treatment have thrust many decisions on us that, in the past, were decided by nature. Having participated in or reviewed hundreds of medical-ethics consults, I know that end of life decision-making can be volatile. We should advise our clients as follows (and take our own advice):


  • Appoint a health care agent in writing
  • Don't assume that a family member is the most qualified
  • Choose the person most willing and able to carry out your treatment preferences
  • Communicate treatment preferences to your agent
  • If a proxy is named after incapacity, the most qualified person should serve regardless of relatedness.

Frank, Casey. (2005, August). Relatives As Surrogates. The Colorado Lawyer, 111.