Proxy Decision-makers for Medical Treatment

The “Proxy Decision-makers for Medical Treatment Act” is intended to be used to make medical decisions on behalf of someone when no advance directive has been made, when there is no current guardian and when only medical treatment decisions are required. It is applicable for all adults regardless of the nature of a disability or illness and prevents the need to obtain guardianship in many cases. The procedure is authorized by Colorado statute. (C.R.S. 15-18.5-101 et.seq.)

The Proxy Decision-makers process is not an advance directive and must not be established upon admission to a long-term care facility or hospital.. It may be followed for a decisionally impaired adult if all of the following conditions exist:

1. Decisions are needed for medical treatment.”Medical treatment means the provision, withholding, or withdrawal of any health care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient’s physical or mental health or personal care.” (C.R.S. 15-14-505-(7))
2. A physician has determined that the patient lacks decisional capacity to provide informed consent to or refusal of medical treatment.Decisional capacity means the ability to provide informed consent to or refusal of medical treatment. To give informed consent the patient must be given all relevant information pertinent to the decision and be able to:
   • Recognize that a decision is needed.
   • Process the information, i.e. discuss it, remember it, evaluate the various factors, understand the consequences.Be cautious – making poor, stupid or unpopular decisions does not necessarily mean the patient lacks decisional capacity.
3. The patient has not made any Advance Directives such as a Living Will and/or Medical Durable Power of Attorney.
4. The patient does not have a guardian.
5. The patient has an interested person or persons, i.e., a spouse, parents, adult children, sibling or grandchildren or a close friend, involved in his/her life.
6. An interested person is available and able to serve as a proxy decision-maker.

The following is a step-by-step description of the Proxy Decisionmakers procedure.

NOTE: NO specific forms, attorneys, notary, or court are required. Some agencies use forms for their own records. A proxy decision-maker does not have to sign anything.

1. The attending physician or a court determines that an adult patient lacks decisional capacity to provide informed consent to or refusal of medical treatment.
2. Such findings along with specifics regarding the cause, nature, and projected duration of the patient’s lack of decisional capacity is recorded in the patient’s medical record.
3. The attending physician, or the physician’s designee, makes reasonable efforts to notify the patient of the patient’s lack of decisional capacity.
4. The attending physician, or designee, makes reasonable efforts to locate as many interested persons as practicable and may rely on those individuals to notify other family members or interested persons.
5. Upon locating an interested person, the physician or designee, informs such person of the patient’s lack of decisional capacity and that a proxy decision-maker should be selected.
6. The identified interested persons are responsible for making reasonable efforts to reach a consensus as to whom among them should be the proxy decision-maker.It should be a person who has a close relationship with the patient and who is most likely to be currently informed of the patient’s wishes regarding medical treatment decisions. (15-18.5-103(4)(a)
7. If any interested person disagrees with the selection or the decision of the proxy decision-maker, or if the interested persons cannot decide among them who the proxy decision-maker should be, then any of the interested persons may seek guardianship.
8. The attending physician or another health care provider makes reasonable efforts to advise the patient of the identity of the proxy decision-maker, and of the patient’s right to object. (C.R.S. 15-18.5-103 (5))The definitions and provisions in C.R.S. 15-14-505 to 15-14-509 (the Medical Durable Power of Attorney) are applicable to the Proxy provisions. For example, just as a DPOA agent cannot override the principal’s wishes, neither can a proxy decision-maker make decisions against the wishes of the patient, regardless of the patient’s decisional capacity.

Additional information:

1. Artificial nourishment and hydration may be withheld or withdrawn from a patient upon a decision by a proxyONLY after the attending physician and a second independent physician trained in neurology or neurosurgery certify in the patient’s medical record that the provision or continuation of artificial nourishment and hydration is merely prolonging the act of dying and is unlikely to result in the restoration of the patient to independent neurological functioning.
2. A proxy decision-maker may request assistance with a decision to withhold or withdraw medical treatment from a health care facility’s medical ethics committee or for an outside referral if there is no facility ethics committee.
3. If any interested person, the guardian or the attending physician believes the patient has regained decisional capacity, the physician must reexamine the patient and determine whether or not the patient has regained such decisional capacity and enter the decision in the patient’s medical record, and notify the patient, the proxy decision-maker, and the person who initiated the redetermination.
4. Any attending physician, health care provider, or health care facility that makes reasonable attempts to locate and communicate with a proxy decision-maker is not subject to civil or criminal liability or regulatory sanction.