Overview of Legal and Ethical Issues in Health Care

ByThaddeus Mason Pope, JD, PhD, Mitchell Hamline School of Law

Reviewed/Revised Oct 2023

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Most adults have the legal right to make their own health care decisions. However, poor health can jeopardize people’s ability to exercise their legal rights.

Safeguarding these rights requires advance thinking and planning. Sudden or chronic illness can cause profound weakness and confusion, which makes people vulnerable and can lead to the unwilling loss of control. Conducting personal affairs, making wishes known, and making sure those wishes are respected may be difficult for people who are physically or mentally impaired. Nevertheless, adults of any age can take steps to protect themselves against losing control of their health care decisions, and such steps are especially important for older people.

Some Legal Terms Related to Health Care

Legal capacity (competency): The right and ability to manage one’s own affairs (usually starting at age 18 in most states).

Legal incapacity (incompetency): The inability to manage one’s own affairs because of injury or disability, as determined by a legal proceeding.

Clinical incapacity to make health care decisions: The inability to understand the significant benefits, harms, and alternatives to proposed health care and to make and communicate a health care decision, as determined by a qualified doctor or other health care professional.

Advance directives: Documents or other recordings such as a living will or a health care power of attorney that communicates a person's wishes about health care decisions.

Living will: A document, sometimes called a medical directive, that expresses a person’s wishes regarding future medical interventions and end-of-life care when the person no longer has the capacity to make health care decisions.

Health care power of attorney: A document that legally appoints someone else to make health care decisions on a person's behalf in the event the person no longer has the capacity to make health care decisions. The person appointed may be called a health care agent or proxy, health care representative, or other name depending on the state.

For health-related personal matters, the key planning tool is a health care advance directive, which includes a living will, a health care power of attorney, or both. For financial and other property matters, the key legal planning tools are a financial power of attorney, a will, and in some cases a revocable trust (or living trust). Together, these legal tools help direct and manage property and health care decisions in accordance with a person’s wishes when the person no longer has the ability (capacity) to make decisions.

Health care advance directives should reflect thoughtful discussion between the person and people close to the person about the person’s values, priorities, and preferences during serious illness. The effectiveness of an advance directive is directly proportional to the thoroughness and thoughtfulness of the discussion on which it is based. State laws vary concerning advance directives, but all 50 states permit people to express their wishes regarding end-of-life treatment in the event of a terminal illness or injury and to appoint someone to communicate for them in the event they cannot communicate for themselves.

The health care documents can be prepared without an attorney. However, an attorney may be helpful, especially if a person’s wishes are complex or family members are not likely to be in agreement.

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