may make all health care decisions that the patient could make for himself or herself, had he or she the capacity (California Civil Code Sec. 2500). The attorney-in-fact's duty is to follow the wishes of the power's grantor, but specific instructions need not be included in the document. In contrast, Nevada and Rhode Island that require statutory forms be used (Nevada Chapter 449 Secs. 2–8; Rhode Island Sec. 23-4.10-1). Grantors of the power of attorney choose options on the form, instructing their agents when to consent to or refuse life-sustaining treatments.

In one sense, although the statutes that provide for standard forms and checked options seem more specific, they may still lead to ambiguities of definition and decision. For example, when an agent is instructed to refuse treatment when that treatment's burdens outweigh the expected benefits, it remains up to the agent (with the help of the health caregivers and others involved) to make the determination. In fact, under the broader powers available under California's statute, the grantor and the agent may be more likely to sit down together and discuss the grantor's wishes, rather than have the grantor check a box and leave it at that.

Other states place even more limits on the powers of the agent. In New York, power of attorney may not be used to delegate medical decisionmaking authority, only to communicate the wishes of the grantor (Strauss et al., 1990). This inflexible provision restricts people's ability to plan ahead and may prevent humane care at the end of life.8

Children

Decisions regarding dying children involve special considerations (Lantos and Miles, 1989; Strain, 1994; AAP, 1995; Fleischman, 1996). Although specific state laws vary, those below a certain age are legally unable to agree to or refuse medical treatment, and so others must make decisions for them. Even so, the best interests of these patients often oblige caregivers to discuss the situation with the children in ways appropriate for their developmental level and physical condition. This discussion may go beyond the sharing of information to ask children what they want for themselves (see discussion in Chapter 3). Problems arise when those with the power to consent to treatment for children disagree with each other or with clinicians. For health care providers, parental decisionmaking may also be complicated by spousal disagreement or evidence of child abuse.

8  

The Conference of Commissioners on Uniform State Laws has recently proposed a Uniform Act on surrogate decisionmaking.



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