TO SURROGATE OR NOT TO SURROGATE, By Jeffrey Loebl

So someone asks you to be his or her health care surrogate. What should you think about and ask?

The forms are ubiquitous. Every time someone is admitted to a hospital an Advance Health Care Directive form is offered. Many state-specific versions are available on the Internet. Each of these forms purports to give a signer’s authority and guidance to another person to carry out their wishes. (The documents, at least in California, are really a power of attorney merged with a living will combined with a Nomination of Conservator and a HIPPA release.)

When agreeing to take on the task of helping an incompetent person receive medical care, you should find out (assuming the person bothered to ask you before just naming you as surrogate):

1. Religion. Does the person want her religion’s health care requirements followed regardless whether she has expressed conflicting opinions in the past? If the signer wants to strictly follow a religion as to end of life care, it would be best to select a member of the clergy of that religion. If someone desires to apply the dictates of a particular religion as interpreted by a religious leader, I would decline to be the surrogate.

Alternatively, the signer may choose to state a religious preference and that the religious preferences be followed so long as they do not conflict with her stated wishes and decisions of the surrogate. Language acknowledging religion, but not allowing the religion to overpower individual desires, affords comfort and avoids religious arguments at the time of difficult decisions.

2. Conservator. Many Advance Healthcare Directives incorporate a separate form nominating a  conservator. If the list of conservators is not the same as the list of surrogates, I would never want to serve as a surrogate and have to coordinate with the conservator.

3. Prolonging life. How does the signer feel about life saving technologies and when they should be applied? Statements like, “I do not want to be a vegetable” are not helpful because nobody desires such an outcome. Modern medicine offers treatments that prolong life or avoid death in many circumstances other than being in a persistent vegetative state. But the decision when it is appropriate to change the goals of care from cure to comfort is a question that everyone should answer individually and share with loved ones.

What factors should be used to make that change? “Unable to interact with family and friends” is a broad standard, but one that encompasses someone who is unable to recognize others. If this is the case, do you not offer antibiotics in the event of pneumonia? What about a feeding tube? Should CPR be declined?

Foregoing intrusive treatment is known as allowing a natural death. It should be clear that the patient will receive substantial treatment, but the focus will be comfort and pain management, rather than prolonging death.

On the other hand, some people firmly believe that every breath is precious and every treatment should be provided to obtain as many breaths as possible. In this case, the surrogate should know this and make decisions accordingly.

4. Family members. Who has been selected as the surrogate and who has not? Have all close family members been told so that there are no surprises during a time of crisis?

5. Number of surrogates. How many surrogates have been appointed to serve at one time? If there is more than one surrogate at a time there will have to be a vote to make any decision, delaying care and increasing frustration. If someone does not trust me to make the decision by myself, in consultation with others, then I do not want to be selected at all. For those of us willing to take on the task of being a health care agent, being drawn into disputes in times of crisis should not be part of the deal.

6. Clear and effective communication.  Schiavo and Curran both concerned disputes over the desire of the patient. Clearly setting forth the basic desires of care avoid having to resolve consent issues in court. In addition to a clear description within the Directive regarding care, it is helpful to have a short letter addressed “To Whom It May Concern” briefly describing the patient’s life and care desires: when life should not be prolonged, when care should be withheld and when to forego extraordinary or highly risky procedures, for example.

Communication with relatives and close friends is also critical. The Advance Health Care Directive should be widely distributed, even to those who care but are not named.

7. Miscellaneous. Inquire whether the patient wants to donate body parts for science, and make sure it is   clear what the patient wants to do with organs, tissue and other material. Is there anyone who is to be excluded from knowing about the patient’s condition or from medical decisionmaking?

Anyone who agrees to be a health care surrogate or agent is doing a great service.  To do a good job, you must have the authority and other interested parties must be aware of that. Insist upon it.

Jeffrey Loebl handles estate planning, trust administration and bioethics matters from his Ojai office.

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