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Abstract

Patients who have impaired decision-making abilities may not be permitted to make contemporaneous medical decisions. Instead, a substitute decision maker, including a healthcare agent, may be asked to decide on the patient’s behalf even if the patient wants to participate in the medical decision making. Being marginalized in decisions made about their medical care may lead to a decline in wellbeing for these patients. But supported decision making, wherein a person with cognitive impairments receives decision-making assistance, may facilitate such patients making contemporaneous medical decisions. As supported decision-making legislation spreads throughout the United States, there are questions about how this decision-making model can be used and how the formal agreements may work with other legal tools. This Article focuses on combining supported decision making and healthcare power of attorney. Individuals planning for cognitive decline can choose both to enter supported decision-making agreements and appoint a healthcare power of attorney. In the beginning stages of cognitive decline, individuals could rely on decision-making assistance while retaining medical decision-making authority. And in the later stages of cognitive decline, someone else would have legal authority to make medical decisions on the incapacitated individual’s behalf. This Article also addresses unanswered practical questions about how these legal documents (supported decision-making agreements and healthcare power of attorney) work together in practice.

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