In a perfect world, everyone (including YOU) would execute advance directives[1] (written instructions about future medical care and treatment, which can include appointing a person to make – or even exclude a person from making – health care decisions on your behalf) prior to reaching a point that you are no longer able to communicate or capable of making health care decisions on your own. Unfortunately, life does not always work that way. Time gets away from you, you put things off, and before you know it some sort of unexpected event occurs, leaving you incapacitated (and without advance directives in place).
What does this mean for you?
The good news is you are not (necessarily) up a creek without a paddle: Indiana law or a court will decide who can make health care decisions for you. The bad news is it may not be exactly what you would want.
- Indiana’s Medical Consent Law
Indiana recently made changes to its Medical Consent Law. In March 2018, Governor Eric Holcomb signed House Bill 1119 into law, which creates a hierarchy for health care decision-making in Indiana (in the absence of advance directives) for adults. Before this new law, the Medical Consent Law was silent on the order of priority of individuals capable of providing medical consent on your behalf.
“Health care” is defined as “care, treatment, service, or procedure to maintain, diagnose, or treat an individual’s physical or mental condition. The term includes admission to a health care facility.” Ind. Code § 16-36-1-1.
Effective as of July 1, 2018, Ind. Code § 16-36-1-5 provides that when a health care representative has not been appointed (or is unavailable or declines to act), consent to health care may be given in the following order of priority:
- A judicially appointed guardian;
- A spouse;
- An adult child;
- A parent;
- An adult sibling;
- A grandparent;
- An adult grandchild;
- The nearest other adult relative in the next degree of kinship;
- A friend (who has maintained regular contact and is familiar with the individual’s activities, health, and beliefs); or
- The individual’s religious superior.
This new law carves out certain exceptions to persons eligible to make health care decisions. For example, a spouse who is legally separated or has a petition for dissolution, separation, or annulment pending in a court or an individual who is the subject of a protective order or pending criminal charge (against the patient) cannot provide health care consent under the priority law. Ind. Code § 16-36-1-9.5.
This new law also requires a health care provider to make a reasonable inquiry into the availability of those who can act pursuant to the priority law. This includes examining the medical records and personal effects of the individual who is incapable of providing health care consent. Ind. Code § 16-36-1-17.
These changes are important because they provide clear guidelines to health care providers on medical consent issues. With that said, there may still be some delay in locating the appropriate person(s) to act. Further, if there are multiple persons with decision-making authority under this law, “those individuals shall make a reasonable effort to reach a consensus as to the health care decisions on behalf of the individual who is unable to provide health care consent. If the individuals at the same priority level disagree as to the health care decisions on behalf of the individual who is unable to provide health care consent, a majority of the available at the same priority level controls.” Ind. Code § 16-36-1-5(e). Thus, there remains the possibility that persons with equal decision-making authority under the law could not reach an agreement on your health care decisions, leaving your medical providers in an untenable position.
- Guardianship
If persons with equal decision-making authority under the priority law cannot agree on your care or decision-makers are not located, your medical providers may seek appointment of a guardian.
A “guardian” is “a person who is a fiduciary and is appointed by a court to be a guardian or conservator as the court may direct for the person or the property of an incapacitated person or a minor. The term includes a temporary guardian, a limited guardian, and a successor guardian but excludes one who is only a guardian ad litem. The terms guardian and conservator are interchangeable.” Ind. Code § 29-3-1-6.
Under Ind. Code § 29-3-1-7.5, an “incapacitated person” is defined as an individual who:
- cannot be located upon reasonable inquiry;
- is unable:
- to manage in whole or in part the individual’s property;
- to provide self-care; or
- both;
because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity; OR
- has a developmental disability.
Any person may file a petition for appointment of a guardian for an incapacitated person. Ind. Code § 29-3-5-1. The person petitioning the court must provide notice to the incapacitated person and anyone else entitled to such notice under law. The court will hold a hearing to adjudicate incapacity and appoint a guardian, when necessary for providing care and supervision of the incapacitated person.
This, too, can cause delay, but is the only other way (besides authority granted under the Medical Consent Law) to appoint someone to make health care decisions on your behalf in the absence of advance directives.
- What you can do if you are concerned about your future health care
The changes to Indiana’s Medical Consent Law do not eliminate the need for advance directives (such as a Health Care Representative or Power of Attorney), especially if you are concerned about the order of priority established under the updated law or if you want to have some control over your future health care before you reach a point that you are unable to make health care decisions on your own.
If you need assistance with appointing a health care representative, preparing advance directives, or handling a guardianship, please contact myself or another member of DSV’s Health Care Services Group.
[1] The Indiana State Department of Health created a helpful brochure explaining advance directives. Here is a link to that brochure.