Who is Legally Entitled to Make Medical Decisions for a Brain Injury Victim?

Michael Waks

9 years ago

brain copy Brain injuries can result in a concussion and loss of consciousness. A brain injury victim may suffer permanent cognitive impairments and loss of function. As a result of the nature of brain injuries, victims who sustain this type of injury often lack the capacity to make medical decisions on their own behalf. When a victim can no longer understand the risks and benefits of medical treatment, or can no longer communicate his wishes about medical treatment, someone else will need to make decisions for him.

Who Can Make Medical Decisions for a Brain Injury Victim?

A brain injury victim can continue to make his or her own medical decisions provided the victim has “capacity” as defined by California Probate Code Section 4609. Under this probate code section, capacity refers to the ability to understand the “nature and consequences” of a decision, to evaluate the risks of treatment, and to communicate a decision that has been made. If a victim does not have capacity because the brain injuries have left him unconscious or with reduced cognitive function, he no longer has the authority to make his own choices on what treatment to undergo.

If the brain injury victim has created a living will, this will dictate what treatment he will receive. A living will is the first resource consulted when making medical decisions for a brain injury victim who cannot speak on his own behalf. If the living will precludes extraordinary life-saving measures or provides specific details about a particular type of treatment, the wishes of the brain injury victim as outlined in the living will must be respected.

If there is no living will or the living will does not provide guidance on a particular medical decision, the next question is whether there is a healthcare power of attorney. If the brain injury victim created a healthcare power of attorney before becoming incapacitated, the victim will have named an agent. The agent will have the authority to make medical decisions for a brain injury victim.

The Patient Self-Determination Act (PSDA) is a federal law applicable to all California hospitals, HMOs, and other providers. The PSDA requires hospitals and other facilities to ask if a patient has advanced healthcare directives when the patient is admitted and to abide by those directives. A healthcare facility should determine if an advanced directive is on file when a brain injury victim is admitted.

If the brain injury victim can’t speak for himself, has no living will, and has no agent, then the California Department of Social Services explains that close family members or friends will be asked to decide what treatment a brain injury victim should receive. There may be disagreement among family and friends about what decisions are best and the courts may need to step in. Probate Code Section 3200 establishes guidelines for how the court can address disputes regarding consent for treatment of a brain injury victim.

When decisions need to be made and there is no agent or living will, a close relative can also ask for a conservatorship. A person with a conservatorship has the legal authority to make medical decisions for a brain injury victim.

Getting Help from a Long Beach Brain Injury Lawyer

Your Injuries are Personal to Me

Let a Long Beach brain injury lawyer help to seek compensation for any treatments a brain injury victim needs.

Call the Law Office of Michael D. Waks at 888-394-1174 or use the convenient online contact form to schedule a free consultation. You are under no obligation and you will never pay any money unless you recover damages for your injuries. I offer bilingual services as part of my comprehensive approach to legal representation and I am available 24/7 to talk to you about your case.

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Michael Waks

Michael Waks is an aggressive advocate for people who have suffered because of someone else’s actions. Michael decided to become a personal injury lawyer when, while clerking at a legal defense firm during law school, he witnessed and was infuriated by asbestos manufacturers spending millions to avoid taking responsibility for the egregious injuries they caused. Immediately after passing the bar, Michael opened his own firm in Long Beach, CA to help the victims of personal injury accidents get every benefit owed them under the law.