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By Bernard A. Krooks, Certified Elder Law Attorney
Special Guest Contributor: Amy C. O’Hara, Certified Elder Law Attorney

Adults who are mentally capable have the right to make their own healthcare decisions. However, when an adult is unable to make their own healthcare choices, typically due to illness, injury, or diminished capacity, someone else will need to make these decisions. 

When you’re tasked with making healthcare decisions for someone else—whether as a guardian, agent under a health proxy, or family member (New York, like a number of states, permits family members or others to make certain healthcare decisions) — it can feel overwhelming. Your role is crucial (we will refer to you as the “surrogate”), and it’s all about ensuring that the choices you make align with what the person presently incapable of making medical decisions (let’s call them the “principal”) would want if they could decide for themselves. Here’s a simple guide to help you navigate this responsibility. 

Historically, decisions were made based on the “best interest” of the person. But today, the focus is on “substituted judgment,” which means making the choice that the principal would make if they were able. Your job in making health care decisions is to put yourself in their shoes and honor their preferences, not impose your own. 

What does that mean? One early description suggested that a surrogate should try “to reach the decision that the incapacitated person would make if he or she were able to choose.” That means that the surrogate should try to substitute the principal’s decision for their own, not the other way around. 

So now you’re the surrogate, and you’re trying to figure out what you should consider when making your decisions. Here’s a list of some of the things to consider: 

Did the principal sign any documents? A living will, for instance, might give some insight into their wishes. There are plenty of other documents that might be useful, though — from worksheets filled out at a seminar on advance directives to letters to family members to descriptions of other patient’s circumstances. 

Did you have any conversations with the principal? Think back to any discussions you had with the principal about healthcare, particularly about others’ situations that they might have commented on. Be cautious to accurately interpret their intentions. 

Did anyone else have conversations with your principal? Ask family, friends, co-workers, and others who might have discussed health care issues with the principal while they were still capable of forming a decision. 

Ask your principal. Are they able to talk at all? If the principal can still express their thoughts, ask them directly. Even if their ability to communicate is limited, their preferences are still important. 

Consider your principal’s life history. Reflect on the principal’s values. Were they particularly religious, or irreligious? Do you know what family members would prefer (and whether your principal would be more likely to agree with or oppose the family)? Did other family members or acquaintances go through similar circumstances, and is your principal’s response helpful to you while making this decision? 

Talk to the medical team. What seems like a major decision might not seem so significant after you’ve discussed the risks and burdens associated with a given procedure (or decision to forego a procedure). 

If you can’t determine what the principal would want, shift to the “best interests” approach. Weigh the potential benefits of a treatment against the burdens it might impose. This doesn’t always mean saying yes to treatment—sometimes, the best decision is to opt out. 

Weigh the “burdens” of treatment against the benefits. Is a proposed operation painful, dangerous, or uncertain? Or might it alleviate pain, make your principal more comfortable, or increase the odds of recovery? 

Strive for consensus. While your main goal is to figure out the principal’s wishes, it’s sometimes important to involve family and medical staff in the discussion. A consensus can help prevent conflict and ensure that the principal’s care is handled with compassion and unity. 

As a last resort, consider submitting difficult choices to the court for resolution. This gives everyone a chance to air their positions in a formal setting and focuses the questions on the principal’s wishes — and care. However, it is time-consuming and expensive and should not be invoked unless there is real difficulty in making the correct decision. 

It is a challenge to make healthcare decisions for someone else. It is also a terrific gift to the principal to accept the responsibility and discharge it carefully and well. Take your role seriously and do your best to substitute the principal’s decisions for those you might make for yourself.

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is a past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.