All states provide legal mechanisms to manage the affairs of persons who have become incompetent through illness or injury. Although the names of these proceedings vary, they have the common goal of determining whether the person is competent and appointing a surrogate if he or she is not. This surrogate is usually called the guardian, and the person who has been declared incompetent is usually called the ward. The guardian has a fiduciary duty to look out for the patient’s best interests and may be required to have court approval for decisions that have a potential adverse impact on the ward.
The guardian becomes the legal alter ego of the ward. When a court appoints a guardian for an individual, the physician must then obtain all consent to medical care from the guardian. The guardian must be given the same information that the patient would have been given. The guardian is also under a duty to ask questions and determine if the treatment is in the patient’s best interests. The physician is no longer obliged to obtain consent from the patient. If the patient is conscious, the physician does have a duty to explain what will be done and to preserve the patient’s dignity as much as possible.