Also by Rev. Tim Rodden
Incapacity—It Happens…Part I
Dear Renna: My partner recently had a stroke. This came as a surprise because he is relatively young. Initially he was in a coma and is now recovering but still cannot speak. His mother has never acknowledged me, and we’ve never gotten along well. Now, she is telling the doctors what to do, and doesn’t even want me to visit or make decisions. What rights do I have?
My friend Tim Rodden and I were just talking about how important incapacity planning is in our community. Tim is a hospital chaplain and the Director of Pastoral Services at Christiana Care Health System in Wilmington. He has seen first-hand the problems that arise when people don’t plan for incapacity. Tim and I have co-written this column. Part II will appear in the next issue of Letters from CAMP Rehoboth.
In June 2009 Governor Markell signed House Bill 112 that protects the right of a patient to have his or her same-sex partner visit the patient in the hospital or nursing facility. Similarly, on April 15, 2010, President Obama issued a memorandum directing the Secretary of the U.S. Department of Health and Human Services (HHS) to promulgate regulations requiring all hospitals that receive federal Medicare and Medicaid funding— nearly every hospital in America—to allow patients to designate who may visit them and prohibiting discrimination in visitation based on a number of factors, including sexual orientation and gender identity. The President’s memorandum calls on the Secretary to issue new guidance and provide technical assistance to hospitals to help them comply with existing federal regulations that require them to respect individuals’ Advance Health-Care Directives and similar documents establishing who should make health-care decisions for them when they are unable to do so. The memorandum also directs HHS to study barriers LGBT people and their families face in accessing health care.
These are very important changes but they do not give a same sex spouse or partner any authority to make decisions for each other if one of them is not able to make decisions. The safest practice is to have an Advance Health-Care Directive (“Directive”) and a Durable Power of Attorney for Health Care, so that you make your decisions and appoint who you wish to carry out your decisions.
What is an Advance Health-Care Directive?
It is a legal document that allows you to convey your health care wishes in the event that you become incapacitated and are not able to do so and can authorize agents to carry out your wishes. Directives used to be called “Living Wills” under a former Delaware statute. Before medical treatment can be withdrawn or withheld, under the Delaware statute, a person must be in a “qualifying condition.” The attending physician and another physician must certify that a person is either “permanently unconscious” or has a “terminal condition.” Further, to be “permanently unconscious,” what often is referred to as being in a “permanent vegetative state” or “irreversible coma,” one of the physicians must be a board certified neurologist or neurosurgeon. See Delaware Code, Title 16, Chapter 2501.
What is a Durable Power of Attorney for Health Care?
Similar to a Durable Power of Attorney for financial matters, a Durable Power of Attorney for Health Care gives an appointed person the right to “stand in your place” when you are incapacitated and unable to make medical decisions for yourself either permanently or temporarily. The person you appoint can access medical records, choose doctors, be informed of medical treatments, and make medical treatment decisions for you. Often, the Durable Power of Attorney for Health Care and the Directive are included in one document.
What does an Advance Health-Care Directive Contain?
This varies by state law and Directives vary in their content. Some have specific check lists regarding types of medical intervention desired, i.e., hydration, nutrition, feeding tubes. Some have very specific lists of music to be played, specific type of pampering desired, what people are allowed to visit (or not visit), etc. Others simply state that the person appointed as agent under the Durable Power of Attorney for Health Care should consult with the physician to make decisions according to the wishes of the person, except as restricted by state law. It is important to use a Directive that is legal in the state where you are a resident, and it is important the document be executed with the formalities required by your state.
See the next issue of Letters for what happens if you don’t have an Advance Health-Care Directive or Power of Attorney for Health Care, specifically why your partner’s mother is in charge and, though you may have the right to visit him, you have no rights regarding his health-care decisions.
This column is distributed with the understanding that the author, Old Capital Law Firm, and the publisher are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters, and accordingly, assume no liability whatsoever in connection with its use.
Renna Van Oot, Esquire practices law at the Old Capital Law Firm in New Castle, Delaware. www.oldcapitallaw.com
The Rev. Timothy D. Rodden, MDiv, MA, BCC is Director of Pastoral Services at Christiana Care Health System, Wilmington, Dela. Email firstname.lastname@example.org