If you have a medical directive, you’ve made the decision to nominate certain individuals to make medical decisions on your behalf, should you be unable to make decisions on your own. If you do not have a directive, or no valid directive (such as one that is not witnessed or notarized or one with agents who cannot be located), then you’ve essentially made the decision to let Arizona law decide who can serve in that capacity.

In an Emergency:

Arizona law (and many other states) provide a “Surrogate Decision Maker Statute”.  A surrogate decision maker is a person who will provide direction in decision making.  Arizona Revised Statute §36-3231 provides that if an adult patient is unable to make or communicate health care treatment decisions and there is no known medical directive, then the following individuals, in the following priority may serve as agent:

  1. The patient’s spouse, (unless the patient and spouse are legally separated);
  2. An adult child of the patient. (If the patient has more than one adult child, then a majority of the adult children who are reasonably available.)
  3. The patient’s parent.
  4. If the patient is unmarried, the patient’s domestic partner.
  5. The patient’s sibling(s).
  6. A close friend of the patient. (Arizona defines a “close friend” as an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s health care views and desires and who is willing and able to become involved in the patient’s health care and to act in the patient’s best interest.)

This prioritization may be in in line with your preferences, but in many situations, people would rather choose who may serve and in what priority rather than giving Arizona law the opportunity.  Often, the above priority of individuals can cause bigger issues.

General Health & Well Being Decisions:

If you do not have a medical directive and have an ongoing need for a medical decision maker, your loved ones will likely have to go to Court for guardianship.  You can read about guardianships in our May 2, 2018 blog article, which can be found here: https://www.bivenslaw.com/elder-law-arizona/arizona-guardianships-versus-conservatorships-what-are-they-and-when-do-you-need-it/ .

If there are mental health concerns, an emergency guardianship is typically required to be filed and specific mental health powers must be granted by the judge.  The mental health powers will allow the guardian to consent to treatment or hospitalization for mental health conditions.

If you have any questions about medical directives or if you would like to review or prepare your own, contact the attorneys at Bivens & Associates, PLLC.

-Rachel S. Zaslow, Esq.