Who can make decisions when there is no healthcare proxy? 7 Answers as of February 17, 2012

Since the person is incapacitated and unable to create either a general durable power of attorney or a durable power of attorney for healthcare, a petition to the probate court would be necessary to appoint someone as his guardian. A related person would be appropriate but the court could appoint a representative pursuant to a petition on a finding that the person was incapacitated. I am not sure what is being asked about a donor but these types of issues are usually addressed by the Probate Court.

There's a statute in Chapter 127 ORS that sets out an order of preferences. It sounds like the children can make the decision in this case.

The only person that can make medical decision under your circumstance is a person who is appointed as Guardian from the probate Court.

The court would need to appoint someone. If the person is incompetent then a hearing must be scheduled to declare the incompentency and the court appoints a person to make those decisions.

If the patient has not designated an agent to make such decisions, no one has the ability to make a decision that is binding on the healthcare provider. If the health care provider is willing to accept a decision made by one or more of the patient's children, it can do so, but it is not obligated to do so. Healthcare providers can be very conservative when it comes to life and death decisions. You need to ask the provider whose decision it will accept.

If someone other than the patient is making a decision and there is no health care power of attorney, the health care provider will usually require a court appointed guardian to make decisions. We establish guardianships to enable a third party to take care of both the financial issues and personal issues related to an incapacitated person. If the decision is removal form life support the facility may allow a majority of the closest relatives to agree, but it may require a court order for that as well. We offer a one hour consultation with an attorney who will provide you with important information regarding your specific case and will able to advise you on the options that you should consider in determining your next steps for the small investment of $100. This is a significant discount from our billing rates. If you are interested in making an appointment with one of our attorneys, please contact Michelle at 702 873 9500. She will need to gather some initial data from you and run a conflicts check before an appointment may be set. Our web site, www.goldguylaw.com , can provide you with more information about the law firm and our attorneys. This response is not intended to create an attorney client relationship. The response is solely intended to answer the question presented. Additional facts and issues are unknown to the responding attorney. Should you still have questions, legal assistance should be sought by making an appointment to meet with an attorney, rather than attempting to resolve the issue via e mail. This response is merely provided to give direction to assist you in the decision of whether you should contact an attorney or not.

A next of kin generally has that power, but in your case, it appears there is more than one. This can result in fighting between the children as to what is the best course of action. Ultimately, if all the children agree, there should not be a problem. However, if they disagree and a "fight" breaks out, you may have to have a Court-appointed Guardian. You should consult with an estate planning attorney in your area to be certain.