The most critical element in surrogate consent is establishing the legal standing of the surrogate. Physicians are frequently confronted with friends or relatives of an incompetent patient who claim to be the patient’s guardian. It is imperative that these persons be asked to provide a copy of the legal order that establishes their status as guardian. A copy of this order should be made a part of the patient’s chart and should be referred to in every consent form.

In most cases, guardianship proceedings are uncontested. The proceedings are instituted by a family member, social worker, medical care provider, or other concerned person for the protection of the incompetent person. The incompetent’s friends and relatives, if any, may testify that the appointment of the guardian is in the patient’s best interests. In uncontested guardianships, consent for medical care should be documented in the same way as a consent from a competent patient. The same type of chart note and consent form should be used, with the additional language about the consent being obtained from the guardian.

Some guardianships are contested. The most common contest involves the appointment of a guardian to consent to medical care for a child whose parents do not want the child treated. The duty to inform the guardian is the same in these cases, but the necessary documentation is more extensive. In addition to incorporating the guardianship papers in the patient’s medical record, an attorney should review these papers to ensure that they are in order. This review is to determine if there are any limitations on the guardian’s authority. Since these cases usually involve hospitalization, the physician should also discuss the guardianship with the hospital’s attorney.

Once a guardian has been appointed for a given purpose, the court does not second- guess the guardian’s decisions. It does attempt to ensure that the guardian is acting properly, and persons may ask the court to remove the guardian if they believe that he or she is acting improperly. If a physician is treating a patient who has a guardian, the physician does not need to ask the court to approve each of the guardian’s decisions. The physician should be prepared to explain how he or she and the guardian arrived at those decisions. Physicians treating patients with contentious guardianship arrangements should ensure that all decisions by the guardian are carefully documented in the medical record.