also by Rev. Tim Rodden
Incapacity—It Happens…Part II
In the July 16, 2010 edition of Letters, Tim Rodden and I wrote on the topic of incapacity. 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 have not planned for their incapacity. Tim and I have co-written this column. In Part I, we covered basic information about Advance Health-Care Directives (“Directives”) and Durable Powers of Attorney for Health Care. In this column we’ll discuss the consequences of not having such documents, considerations for appointing agents, where to keep the documents and other important information.
Do you remember the case about Sharon Kowalski and Karen Thompson? It was back in 1983, the couple had been together four years when Sharon was hit by a drunken driver. Sharon was comatose at first, then ultimately left with a severe brain injury. A legal battle ensued between Sharon’s father and Karen Thompson. In 1991, after many unsuccessful tries and years of separation, Karen finally won the right to be Sharon’s guardian, and cares for her to this day. Though much has changed in the last few decades, one thing remains the same: the importance of incapacity planning in our community.
What happens if you don’t have legal Directives/Powers of Attorney for Health Care?
If a person becomes incapacitated without having executed legal documents appointing individuals to make decisions, then hospitals, medical facilities, and doctors follow a law that designates who is entitled to act as “surrogate.” Under Delaware law, the order of such persons is: spouse, adult child, parent, adult sibling, adult grandchild, then adult niece or nephew. In Delaware, same-sex partners are not included in this list and have no right to participate in making decisions for you, even if you present a marriage certificate or other document certifying a legal relationship recognized in another state or country.
Every hospital should have an ethics committee or consultant that can help provide guidance in the event there are questions regarding the appropriate decision maker for a patient unable to make decisions for him/herself. You may request consultation with the Ethics Committee if this need arises.
It is also important to know that in Delaware, just as in the Kowalski case, when a person becomes legally “disabled,” anyone can step forward and petition the Chancery Court to be named guardian of that person and/or guardian of the person’s property.
This means that a same-sex partner (or anyone else for that matter) can “apply” to be a guardian over the incapacitated person, but time, cost, and trouble can be avoided simply by having the document in place.
Appointing Agents—Who is Best?
Careful consideration should go into choosing your agent for both your Advance Health-Care Directive and Durable Medical Power of Attorney for Health Care. You should know if your potential agent will or will not be able to carry out your wishes. If you want to be taken off life support if you are permanently unconscious will your agent be able to do so? If you so wish, will your agent be able to decide to withhold medical treatment if he or she has devoutly held beliefs to the contrary? Or if you wish otherwise, will your agent keep you on life support? We have experienced situations where persons designated close friends as their agents, rather than their spouses, partners or other family members as agents, because of these issues.
Where to Keep the Documents
Access to the documents is also extremely important. Some people choose to keep the content of their Will or other estate planning documents private. However, this should not be the case for a Directive or Power of Attorney for Health Care. The first person you appoint as your agent should be given an original or told where the originals are kept. If you don’t want to give your agent an original, he or she should get a copy. It is important for an agent to understand when he or she has the authority to act on your behalf. Your physician should have one original of your Directive on file. If you are admitted to the hospital or health care facility, you should be asked to bring a copy of your Directive. Be sure they get a copy, not the original. If you own a vacation home it is advisable to keep a copy in your second home in the event of an emergency. The same is true if you are traveling. Delaware law recognizes an advance directive or similar health-care declaration that is valid under the laws of another state. So, you are protected in Delaware if you have a valid Durable Power of Attorney for Health Care from your state of residence.
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 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, Delaware.