If the patient is not capable of making a choice and no advance direc¬tive provides an alternative basis for consent or refusal, some other per¬son or persons must provide the direction and legally adequate over¬sight for care. A surrogate decider can be a person chosen by the patient under a proxy designation or a durable power of attorney, a statutorily designated person, or an informally identified person such as a close family member or a friend. The more informal the appointment, the less likely the surrogate will be able to refuse life-sustaining treatment.
In the past, elderly patients were cared for by their physician and family, who were guided by beneficence or personal convictions and respect. Although still the norm, such unreviewed, unsupervised surro¬gate decision making is increasingly circumscribed by growing legal awareness of the problems involved and the development of rules and regulations to guide and constrain decisions.
In the past decade, courts and legislatures have implemented rules holding that persons who cannot decide about care do not lose their right to consent or refuse. These rights may be exercised by others, based on specific legal standards with procedural safeguards and stipu¬lated possibilities for review.
Most hospitals and physicians accept consent to provide care from a spouse, child, close friend, member of the clergy, or even a distant and uninvolved relative. Yet, in most states, none of these persons is legally empowered to consent on behalf of another. But based on tradition and the supposition that a close relative or friend would care and know most about the patient, accepting the judgment of such a person over that of a total stranger makes practical and ethical sense. Such reasoning does not apply when permission is sought from a distant, uninvolved, or es¬tranged relative. Except in exceedingly rare cases, a decision agreed upon by hospital, physician, and family operates as the basis of care, although it may not be legally adequate if challenged.
For elderly people who have outlived family and friends, a court-appointed guardian, who is often uninterested and serves a perfunctory role, may be the only alternative. Some institutions and regions are ex¬perimenting with public guardians and patient advocates, which may prove appropriate and cost-effective.