Governance









White Paper on Surrogate Decision-Making and Advance Care Planning in Long-Term Care

Table of Contents
  1. Introduction
  2. Competence
  3. Decision-Making Capacity
  4. A framework for assessing decision-making capacity
  5. Surrogate Decision-Making
  6. Advance Directives
  7. Guardianship
  8. An Ethical Framework for Surrogate Decision-Making
  9. Decision-making by mentally incapacitated long-term care facility residents
  10. The hierarchy of medical decision-making for incapacitated nursing home residents
  11. Guidance for guardians and other surrogates about medical decision-making
  12. What surrogates and health care provider should expect from each other
  13. Some Important Clinical Issues
  14. Summary and Conclusions
  15. References

Competence

Although health care providers often use the terms 'competence' and 'decision-making capacity' interchangeably in conversation, these terms actually have different meanings. Competence (or competency) defines a legal status. A person is legally either competent or incompetent, with no gray areas in between. An adult is assumed to be competent unless he or she is determined by a court to lack the ability to make the decisions required for living safely, at which time the court deems that person incompetent.

Laws in different states may specify domains of competence, such as competence to be a parent, be married, serve as a witness, stand trial, or make medical decisions. In determining a person's competence, courts may consider information provided by clinicians. The determination of incompetence changes a person's legal status, essentially removing the right to make decisions from him or her. The court transfers that right to someone else (termed a guardian in most states) whom it appoints. A guardian may be a family member, friend, or professional surrogate decision-maker.

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