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Substitute Decision-Making

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Competency

Competent individuals have the right to make all sorts of decisions about their lives. Examples are the right to decide about getting health care, and what kind of care to get. This raises two questions. First, what does it mean to be competent? Second, who makes decisions for someone who is not competent?

Generally, competency has to do with a person's ability to understand the effect or possible results of his or her actions or decision. Iowa law defines when a person is considered incompetent. A person is incompetent when his or her ability to make decisions is impaired to a certain extent. The ability has to be so impaired that he or she is not able to provide for food, clothing, shelter, health care, and personal safety.

Decisions for people who are not competent are made in a number of different ways. There are two main ways one person can get the authority to make decisions for someone else. The first way involves court proceedings. The second way does not involve court proceedings.

People often get confused regarding guardianships, conservatorships, and powers of attorney. Guardianships and conservatorships involve court action. No court action is necessary to do a power of attorney.

Guardianships and Conservatorships

In a guardianship, the court gives authority to one person to make non-financial decisions for someone else. The person who makes the decisions is called the guardian. The person for whom decisions are made is the ward. This would include deciding where a ward lives and what type of medical care a ward gets.

In a conservatorship, one person is given the authority to make decisions about financial matters for another person. The person who makes the financial decisions is called the conservator. The person for whom decisions are made is called the ward. Someone can be appointed to serve both as a guardian and a conservator. Guardianships and conservatorship can only be set up by a court.

It is also important to know that the words "guardian" and "conservator" sometimes have different meanings in different states. Sometimes a person who would be called a guardian in Iowa is referred to as a "conservator of the person" in other states. A person who is called a conservator in Iowa might be called a "guardian of the estate" in another state.

Powers of Attorney

A power of attorney lets someone give the authority to act on his or her behalf and make decisions for him or her. The person who is given authority to act and make decisions is called the attorney-in-fact or agent. The person for whom the attorney-in-fact or agent acts and makes decisions is called the principal. No court action is necessary to set up a power of attorney. However, the principal must be competent when the power of attorney is set up. If the principal is not competent, no valid power of attorney can be established. In such cases, a guardianship or conservatorship is necessary.

Attorney-in-fact should not be confused with Attorney at Law. An Attorney at Law is a lawyer who represents someone in legal matters. An attorney-in-fact or agent does not have to be a lawyer.

There are a number of different types of powers of attorney. A power of attorney could be general. That is, the principal may give the agent authority to make decisions and act on his or her behalf in all matters. A power of attorney may also be limited. That is, it may be used only for a particular purpose. For example, a power of attorney may be limited to making a medical decision or the sale of a particular piece of real estate.

A power of attorney may also be durable or not. A durable power of attorney is one that continues in effect even if the principal becomes incompetent. Under a power of attorney which is not durable, the agent loses the authority if the principal becomes incompetent.

Health Care Decisions and Advance Directives

Questions about powers of attorney and guardianships often come up when health care decisions must be made. Generally, under the law, a competent person has the right to decide if he or she will get health care. A competent person can decide what type of health care he or she will get. If a person is not competent, there is probably a need for a guardian to make those decisions.

Individuals often want to set up plans for making health care decisions in case they should become incompetent in the future. These type of arrangements are called advance directives. One type of advanced directive is a durable power of attorney for health care. A durable power of attorney for health care allows the principal to appoint an agent to make health care decisions for the principal in certain situations. The agent can make decisions if the principal should become incompetent, or unable to make his or her own health care decisions.

Another type of advance directive is called a living will or declaration relating to use of life-sustaining procedures. A living will directs a physician to withhold or withdraw certain types of treatments or life-sustaining procedures that prolong the dying process.

No one is required to have a living will or durable power of attorney for health care. Obviously, signing such documents has major consequences. A person should carefully consider these documents. A durable power of attorney for health care is very flexible. It authorizes someone to make decisions in whatever circumstances come up. No one knows what type of circumstances may exist in the future. A living will lets someone say what he or she would like to have done in certain circumstances.

Sometimes there is no durable power of attorney for health care or living will. In this case, Iowa law says the guardian of the person will decide about withdrawing life-sustaining procedures. If there is no guardian, the person's spouse will decide. It may be the case that the person is not married or the spouse is not able to make the decision. In that case, the law includes a list of other relatives to consult. If no relatives are available, a medical decision board will decide.

Last Review and Update: Jul 11, 2002
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