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When Nothing is in Writing

| Aug 27, 2019 | Estate Planning |

When healthcare decisions aren’t in writing and there are no powers of attorney readied beforehand, what happens to the patient? Who steps in and makes decisions on their behalf?

We advocate that everyone create a medical power of attorney and put those important healthcare decisions in an advance health care directive before a major incident occurs. You don’t want to find yourself or a loved one suffering an accident or health crisis and be unable to have your health wishes fulfilled.

However, when nothing is written down, what happens then?

Each state has laws which dictate who makes decisions in these situations. Generally, a healthcare surrogate or agent is named for an incapacitated patient. In Maryland, we are governed by the Health Care Decisions Act, which states that surrogates are named in the following order:

  • A legal guardian of the patient
  • Spouse or domestic partner
  • Adult child of the patient
  • Parent of the patient
  • Adult sibling of the patient
  • Friend or other relative

However, if there are no other agents available in the previous tiers and a friend or other relative is appointed, they will have to complete an affidavit stating that they have had “enough regular contact with the patient so as to make the surrogate familiar with the patient’s activities, health, and personal belief.”

If a surrogate is appointed, that person is expected to make decisions based on the patient’s wishes, if known, or in the patient’s best interests, which is also defined by the Act.

Would your child know your medical preferences? Would your best friend? Your parent? It is possible for a person in the list of surrogates to decline to be your agent if they feel they aren’t an appropriate choice or are otherwise unsuitable to the task, which means the agency would be passed to the next in line. An advance health care directive is crucial to preventing misunderstandings as well as disagreements as to your medical care if you can’t speak for yourself.

Read more about the Health Care Decisions Act at the MD Attorney General’s website: http://www.marylandattorneygeneral.gov/Pages/HealthPolicy/hcda.aspx