Does The Victim Of A Serious Brain Injury Have the Capacity To Decide?

The nature of a brain injury can make it difficult to determine if the person can make medical decisions or if someone should make medical decisions on his or her behalf. When a brain injury victim suffers from a loss of consciousness, loss of function, or permanent cognitive impairments, he or she may need someone to act on his or her behalf to make medical decisions. The key to determining if the brain injury victim can make medical decisions is to determine if the victim has the “capacity” to make medical decisions.

California’s Health Care Decisions Law

California Probate Code §4609 defines the term “capacity” as it relates to making medical decisions. Capacity refers to a person’s “ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.” If a brain injury victim cannot understand the risks and benefits of treatment due to reduced cognitive function or if the victim is unconscious, he or she lacks the capacity to make medical decisions. In this case, someone must step in to make medical decisions for the brain injury victim.

Living Wills and Healthcare Powers of Attorney

A living will dictates the type of treatment a patient receives even if that person is unable to speak for himself or herself. A living will sets forth the patient’s wishes regarding life-saving measures and it must be respected by healthcare professionals. If there is not a living will or the living will does not address a specific type of medical treatment, the second type of legal authority that may be used to make medical decisions for a brain injury victim is a healthcare power of attorney.

In a healthcare power of attorney, the patient names an agent to act on his or her behalf in the event of incapacitation. The agent has the authority to make medical decisions on behalf of the brain injury victim in accordance with the terms of the healthcare power of attorney. Hospitals, doctors, and other medical providers are required to determine if a brain injury victim has a living will or a healthcare power of attorney if the patient lacks the capacity to make medical decisions.

Can Family Members Make Decisions for a Brain Injury Victim?

If the patient does not have a living will or healthcare power of attorney, the California Department of Social Services states the medical staff will ask the closest available relative or friend to assist in making medical decisions for the patient. In the event family members disagree regarding medical treatment, California Probate Code §3200 sets forth the procedure for petitioning the court to settle disputes regarding medical treatment for a brain injury victim. In some cases, a relative or close friend will need to petition the court to be appointed as conservator for the brain injury victim to make decisions on behalf of the patient.

Seek Help From an Experienced Fresno Brain Injury Attorney

If you or a loved one has suffered a brain injury, the brain injury lawyers of Torem & Associates can help. We represent patients and their families in the Fresno, Los Angeles, and Central California Valley areas. Contact our office by calling 1-800-954-4444. You may also chat with a representative online or use our convenient online contact form to schedule a free consultation.