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.