by Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
It happens, your co-worker, cousin or neighbor two doors down is now dead. No one saw it coming. They died from heart failure, an accident, Covid-19 or something else. Did they have the paperwork in place to let the health care providers know who to talk with about care prior to their death? If not, who has the right to make decisions for someone who is not capable of giving consent for their treatment or care?
If you have not planned ahead, Idaho has a law creating a list of who can make decisions for someone who is mentally or physically incapable of communicating effectively or someone who is a minor. [1] This is the list in the order of priority:
(a) A court appointed guardian of that person;
(b) The person(s) named in another person’s “Living Will and Durable Power of Attorney for Health Care” or a similar document;
(c) If married, the spouse of such person;
(d) An adult child of such person;
(e) A parent of such person;
(f) The temporary guardian nominated by the parent of a minor;
(g) Any relative of such person who represents himself or herself to be an appropriate, responsible person to act under the circumstances;
(h) Any other competent individual representing himself or herself to be responsible for the health care of such person; or
(i) If a medical emergency or there is a substantial likelihood of his or her life or health being seriously endangered by withholding or delay in the rendering of such hospital, medical, dental, surgical or other health care to such person and the person has not communicated and is unable to communicate his or her treatment wishes, the attending health care provider may make the decision.
The list is open to potential problems with items (d) through (i). For example, in (d) – what if there is a dispute between two adult children about the care for their ill parent? Which wishes do the medical professionals follow?
The best solution to this problem is fill out the form referred to in (b). These forms are available at no charge and do not need witnesses or a notary. Help your family and friends by encouraging them to complete the forms and give copies to their doctor and the health agents nominated in the form. Keep the original at home.
Where to find the forms? The Idaho Legal Aid website has interactive forms for a Financial Power of Attorney and the Living Will and Durable Power of Attorney for Health Care.
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[1] Idaho Code Section 39-4504
