A few months ago, I had a friend say to me, “My spouse will be able to make medical decisions if I’m incapacitated, so I don’t need a power of attorney yet.” This is actually an unfortunate misconception. In most states, spouses do not have an automatic right to or control of your finances, medical care, or property. The only area in which spouses tend to have an automatic right – barring any divorce or custody agreements stating otherwise – is in regards to the care of minor children.
My friend had assumed that her husband would automatically be able to make medical decisions on her behalf should she have an accident or become unconscious in the hospital. However, this is not always the case. In some states, the spouse is the next default decision maker when there is no advance medical directive in place. In other states, there is a process similar to what happens when a person dies without leaving a will – the court will step in and follow state law to name a family member, close friend, or sometimes a neutral third party as the patient’s guardian. This process can be stressful, expensive, and emotionally draining, especially when a loved one’s health and well-being are in question, and no one wants to be put through such an ordeal.
In Maryland, the Health Care Decisions Act [1] states that in the absence of a power of attorney, an appointed agent, or other such named guardian, the priority for decisions falls in this order: spouse or domestic partner, adult child, parent, adult sibling, and then close friend or relative who has maintained regular contact with the patient. This priority order is only applicable in decisions regarding life-sustaining procedures and only if the patient “has been certified to be in a terminal condition, persistent vegetative state, or end-stage condition”. What that means is if there is no power of attorney or named guardian, then the spouse will only be able to step in and make decisions in terminal situations and not regarding the healthcare decisions leading up to that point. [2]
Conversely, if there is a legitimate power of attorney document in place with a named agent as well as a backup agent, then those agents are consulted first and given legal authority, while the priority order established in the statue has no legal weight unless all named agents are unavailable. If the patient has named an agent other than their spouse, then that agent is the person doctors will consult and give legal precedence to, rather than the patient’s spouse.
If there’s a situation in which no surrogate is named or available, and no advance directive, a physician will provide care to the patient according to the guidelines of the hospital or office in which they work. Typically an ethics committee is available to assist with such decisions in a hospital environment. If necessary, a physician may initiate the guardianship process with the court if no guardian, family member, or agent has been found or stepped forward.
It is strongly advised that all adults have a medical power of attorney or a Maryland MOLST in place before it’s needed. If you wait too long, or if you never create one, you risk having your medical decisions made by those who may not know what your wishes are.
You can find more information on the Health Care Decisions Act at the Maryland Attorney General’s website, including PowerPoints and charts which explain the decision-making tree for health care professionals: http://www.marylandattorneygeneral.gov/Pages/HealthPolicy/hcda.aspx
[1] Maryland Statue §5-601. General Assembly of Maryland. http://mgaleg.maryland.gov/webmga/frmStatutesText.aspx?article=ghg§ion=5-601&ext=html&session=2017RS&tab=subject5
[2] “Default Surrogate Consent Statutes.” January 1, 2018. Page 7. American Bar Association. https://www.americanbar.org/content/dam/aba/administrative/law_aging/2014_default_surrogate_consent_statutes.authcheckdam.pdf