Step 1: Understanding the Law


All states have laws that allow us to make future health care treatment decisions now so that if we become incapacitated and unable to make these decisions later, our family and doctors will know what medical care we want or do not want. State laws also allow us to appoint a representative to make future health care treatment decisions for us if we become incapacitated, since we cannot predict what future decisions might be necessary.
The information below may be helpful to you but is not a substitute for legal advice.
(Content is courtesy of the Office of the Attorney General of Arizona, Mark Brnovich.) 
 

1  CONSTITUTIONAL RIGHTS TO MAKE MEDICAL TREATMENT DECISIONS

Our constitutional rights to privacy and liberty include the right to make our own medical treatment decisions. The government also has interests in some of our medical treatment decisions, which include preserving life, safeguarding the integrity of the medical profession, preventing suicide, and protecting innocent third parties (Arizona, for example, does not approve or authorize suicide or assisted suicide). Choices within the bounds of law as to which medical treatments will be applied or denied are ordinarily made by the person receiving the treatment, through the process of informed consent.
  2  APPOINTING A HEALTH CARE REPRESENTATIVE

If someone becomes unable to understand, reason or make judgments, his or her constitutional rights to make medical treatment decisions remain. A health care representative appointed by the person in writing or, if no one has been appointed, a representative appointed according to the law, will make treatment decisions as follows:

  1. Following Expressed Wishes: The representative and physicians will be guided or controlled by medical treatment decisions that were made in writing by the person before he or she became incapacitated.
  2. Using Substitute Judgment: The representative will make choices about treatment decisions based on what he or she believes the incapacitated person would choose; if those choices are unknown, then the representative will decide based on what he or she knows about the incapacitated person’s values and wishes.
  3. Using Good Faith to Decide Best Interests: If the representative does not know the decisions, preferences or values of the incapacitated person as to medical treatment decisions, then he or she must decide in good faith what would be in the best interests of that person, considering (a) relief from suffering, (b) whether functioning will be preserved or restored, and (c) the quality and extent of sustained life.