Present law relating to substitute healthcare decision-making is deficient, as it requires that consent be obtained but does not provided a practical mechanism for doing so. The law also fails to provide individuals with a mechanism for planning for their own incapacity with respect to healthcare decisions. This report contains 28 recommendations and contains draft legislation entitled Health Care Instructions Act which would create the advance directive, create the healthcare agent or proxy, and integrate the scheme into other healthcare decisions. The proposed scheme is to create advance directives which are relatively simple to create, which will provide clear and unambiguous instruction to the healthcare decision-maker, and which will settle issues without litigation. A major recommendation is that legislation be introduced to give legal force to healthcare directives. A directive could appoint an agent to make the healthcare decisions in the event of the incapacity of the maker of the healthcare directive. Alternatively, it could give specific instructions as to what is to happen in certain specified circumstances. A second major recommendation is the creation of a backup system of substitute decision-making for those patients who have not appointed a healthcare agent through the use of a statutory list of proxy decision-makers. The order of priority roughly corresponds to the closeness of the relationship to the individual.
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