MTRC, Inc. |
(The following article is in response to a question posed by sponsors preparing their Letter of Intent. What happens if there is no immediate family member able to make medical decisions for my son or daughter when I am no longer here? Excerpts to address this question were taken from "The Guardianship Handbook, A Guide to Adult Guardianship and Guardianship Alternatives in Maryland", published by the Law and Health Care Program, University of Maryland School of Law.)
Doctors and other health professionals generally must have a patient's informed consent before giving medical treatment. Informed consent means that before a physician can treat a patient: (1) the doctor must explain the pros and cons and the alternatives to the treatment; (2) the patient must agree to be treated, unless the situation is an emergency; (3) the patient must understand the nature of the treatment, the dangers and the possible side effects; and (4) the patient must give consent freely, without pressure to do so.
If a person is not able to make decisions for him or herself and cannot understand the doctor's explanation, the doctor must obtain informed consent from someone else. That person may be a guardian of the person appointed by a court. However, there are other alternatives for consenting to medical treatment. The Maryland Health Care Decisions Act, passed in 1993, provides two ways that someone else can consent to medical treatment for an incompetent person.
A person who is mentally competent can use an Advance Directive to appoint someone else (known as the "Agent") to make decisions in the event that the person becomes unable to do so. An Advance Directive is sometimes called a living will or a health care power of attorney. It is a document that designates who is to make decisions about health care. It also can give directions or guidelines about what choices should be made (for example, no resuscitation). The Advance Directive requires no court involvement. However, the person who is designating the Agent or giving the directions about health care, must be mentally competent at the time of signing the Advance Directive.
If the person did not appoint an Agent because he or she chose not to sign an Advance Directive, or because he or she was not mentally capable of doing so, a surrogate decision maker can consent to medical care. A surrogate is a substitute, a person who makes a decision for the incompetent person. If there is a surrogate to make medical decisions, there may be no need for a guardian of the person.
The Health Care Decisions Act allows these persons to act as a Surrogate Decision Maker in the following order of priority:
A surrogate from the last category (relative or close friend), must sign a statement confirming that the patient's wishes are well known to the surrogate. In the statement, the surrogate should state that he or she is a relative or close friend of the patient, and give specific information showing that the surrogate is familiar with the patient's activities, health, and personal beliefs. The statement should include such facts as (1) how long he or she has known the patient; (2) how frequently they had contact; and (3) what he or she knows about the patient's beliefs and wishes. The statement is given to the doctor and is placed in the person's medical record.
Surrogate decision makers must follow certain guidelines and their decisions must be guided by what the person would have wanted. However, if a person's wishes are totally unknown or unclear, as in the case of someone who has had profound mental retardation all of his or her life, the surrogate must then decide based on the person's best interest. In general, that means that the benefits of treating the person outweigh the burdens of doing so.
There are limitations on surrogates. A surrogate may not authorize sterilization or treatment for a mental disorder. In addition, the surrogate may not authorize treatment if the patient, even if incompetent, is actively refusing that treatment. For example, this sometimes happens when those with mental retardation refuse to allow a dentist to work on their teeth. If any of these limitations occur, it would be necessary to ask a court to appoint a guardian to consent to treatment.
Maryland law allows doctors to give emergency medical treatment to an incompetent person without consent if there is a substantial risk of death or immediate and serious bodily harm to the patient, and delay in treating the person would be harmful to the patient.
When the situation is urgent, and a guardian must be appointed immediately, the law provides for the appointment of an emergency guardian. Sometimes a person needs medical treatment which is not urgent, but should not be delayed the two to three months that it takes to appoint a guardian of the person. In this situation, an emergency guardianship may be the best solution. In some instances, the judge may confer with doctors on the telephone to expedite matters. The order appointing a temporary guardian lasts for 144 hours, or 6 days. After that the order expires unless the petitioner asks to extend the order until a permanent guardian can be appointed.
In a public guardianship, the director of the local Department of Social Services or the director of the local agency on aging is appointed to serve as guardian of the person. Public guardians may only serve as guardian of the person, not as guardian of the property.
A public guardian is appointed only when there is no family member or friend willing or able to serve as guardian. In these cases, a staff person from the agency fills the role of the guardian, visiting the disabled person on a regular basis and making sure that his or her needs are met. The public guardian can sign consent forms for medical care. An Adult Public Guardianship Review Board is established in each county of Maryland and the City of Baltimore to review each of the public guardianships twice a year.
Now is the time to consider who will assist your son or daughter in the future with medical decisions. If your son or daughter is mentally competent enough to understand and sign an Advance Directive, consider asking a relative or friend to be the Agent. Make sure the document is properly written and witnessed (legal advice is recommended). We suggest that a copy of the Advance Directive be filed with the Service Provider and family physician. If an Advance Directive is not possible, consider someone to be the Surrogate Decision Maker. Talk with that person to determine if he or she is willing to serve.
Either decision (Advance Directive or Surrogate Decision Maker) should be documented in the Letter of Intent that you have filed with the MTRC so that our Case Managers are aware of your decisions.
(This article contains general information for educational purposes. Detail has often been sacrificed for the sake of brevity. It does not constitute legal advice. Families and individuals are strongly encouraged to consult with appropriate legal professionals to obtain a fuller explanation and to discuss their individual situations and options.)