Patients often lack the cognitive capacity to make their own decisions. In those cases, a family member or another person might be legally appointed medical power of attorney or guardian.

The laws vary by state, so case managers should learn what their own states require for a third-party decision-maker. For instance, a state might require that someone be appointed to make healthcare decisions for a patient if a physician certifies the patient cannot make his or her own healthcare decisions, says Cheryl Acres, RN, CCM, CDP, owner of Comprehensive Care Management, LLC, in Dallas.

The patient also might have already signed a legal document appointing a family member or other person as his or her medical power of attorney. Those circumstances can make shared decision-making tricky, particularly if disputes arise among other family members.

“Say you have a cognitively impaired person, and the appointed medical power of attorney says, ‘I don’t want Mom to have surgery,’ but the patient wants it, or the other children are involved,” Acres explains.

Cases like this might have to go through mediation, and case managers will have to wait to see how it is resolved. Acres has experienced these complicated issues and has testified in court as a result. “I have to be objective,” she says.

For example, Acres handled a case in which a woman in an assisted living facility also received costly 24-hour caregiving services. The woman’s son, who served as her medical power of attorney, approved the 24-hour care. The woman’s daughter disagreed the 24-hour service was necessary. Their dispute went to court, and Acres was asked to assess the woman’s living situation.

“I met with the lady, checked her cognitive function, and talked with the assisted living facility to get an idea of what they were doing for her and how much help she needed,” Acres says. “She has some cognitive impairment, so how much care does she need?”

One of the questions was whether the woman would benefit from living in a memory care unit, where she would be engaged at a level where she could participate. All issues and decision options needed to be explored, despite the legal dispute over who could make decisions.

“Sometimes, shared decision-making is with the medical power of attorney or the legal guardian,” Acres says. “Someone may go for guardianship, and that may trump the medical power of attorney.”

Also, there might be two guardians — one who makes the person’s healthcare decisions, and one who handles financial issues.

When case managers engage people in shared decision-making, it is possible that four people are involved in considering options: the patient, the parent (if the patient is a minor), the person with a medical power of attorney, and the legal guardian.

“Each state has its own rules about decision-makers,” Acres says. “It’s usually the spouse, but if there is no spouse, then it’s the children or oldest child.”

Without a legal document naming the patient’s decision-maker, it can be challenging for healthcare providers to determine who can share the decision-making process. Consider the case of a couple, both in their 80s. The husband is sick and needs medical care in the hospital. Without a legal document, the providers may turn to the wife. But she might show signs of dementia, although she had never been diagnosed with cognitive impairment, Acres says.

“Then, the children are weighing in, and it is so complicated,” she adds.