Maryland Bar Bulletin
Publications : Bar Bulletin

Editor: W. Patrick Tandy

April, 2004


In RE Foley: The Health Care Decisions Act Finally Worked

By Angela B. Grau

Last year, we reported on the case of In re Sophia E. Foley. In the Foley case, the Circuit Court for Anne Arundel County, Maryland, issued an order for a physical examination pursuant to a discovery request filed by the petitioner for guardianship (Mrs. Foley’s sister). Over the objection of Mrs. Foley’s husband and health care agent, the order was issued, despite the acknowledgement by the court that (1) Mrs. Foley had executed a valid advance directive in 1992; (2) that Mr. Foley was his wife’s designated health care agent; (3) that, as the health care agent, Mr. Foley was granted “broad powers;” (4) that the purpose of the advance directive was to permit Mr. Foley to manage his wife’s health care; and (5) that Mr. Foley was trying to follow his wife’s doctor’s orders “as best he can.” Regardless of these findings, the trial court held that a “reasonable health care agent” ought to have the tests performed; this is a standard that is unsupported by Maryland law.

On appeal, the Court of Special Appeals vacated that order; however, that ruling was overturned by the Court of Appeals, which held that the trial court’s discovery order was not subject to interlocutory appeal. The Court of Appeals specifically indicated that the ruling was not on the subject matter of the appeal but was based on a procedural issue. After a petition for review was denied by the United States Supreme Court and the case sent back to the trial court, Mr. Foley requested that the trial court reconsider its original opinion, an opinion that effectively granted Mrs. Foley’s sister the relief sought in the guardianship case without appointing her guardian.

The trial court granted Mr. Foley’s motion for reconsideration and dismissed the guardianship petition on Mr. Foley’s motion for summary judgment. In its opinion, the trial court, for the first time in the State of Maryland, incorporated the three-step, decision-making matrix set forth in Maryland’s Health Care Decisions Act (HCDA) into its determination of whether a guardian should be appointed when a valid advance directive is in existence. This is significant because in Maryland there is little case law interpreting the HCDA or the guardianship statute, let alone the interplay between the two when there is a disagreement between two surrogate decision makers about the care of a disabled person.

The decision-making matrix of the HCDA provides as a first step that medical decisions are to be made in accordance with the expressed wishes of a competent individual in a written (or oral) advance directive. If the declarant did not specifically address a particular situation in his advance directive, then decisions are to be made in accordance with the HCDA’s considerations for determining a patient’s wishes. Lastly, if the wishes of the patient are unknown or unclear, the health care agent shall base his decision on the best interest of the patient, as defined in the HCDA.

The trial court stated that although Mrs. Foley had not expressed her wishes regarding her examination, testing and treatment for Lyme disease (which were requested by her sister) Mrs. Foley did not have to provide such specificity in her advance directive. The court went on to state that Mrs. Foley’s advance directive, specifying her husband as her health care agent, “should end the inquiry.” Based on the record before it, the court held that Mrs. Foley’s sister had not met her burden to prove that Mr. Foley was not acting in accordance with his wife’s best interest, and therefore it was not necessary for the court to superintend and direct Mrs. Foley’s care through a guardianship.

Although this opinion has no precedential effect beyond the Foley case, it is the first time that a Maryland court at any level has incorporated the decision-making matrix of the HCDA into a determination of when or how the decisions of a health care agent or surrogate should be overruled by a court. Further, this decision places the burden squarely on a challenger to prove that a health care agent or surrogate is not acting in accordance with the decision-making matrix set forth in the HCDA.

As a sad postscript to this already tragic family situation, Mrs. Foley passed away on February 26, 2004. Mrs. Foley’s legacy is a better understanding of our ability to control our own health care decisions, even through a lengthy period of disability.

Angela B. Grau is an associate with the law firm of Davis, Agnor, Rapaport & Skalny, LLC, in Columbia, where she concentrates her practice in fiduciary litigation.



Publications : Bar Bulletin: April, 2004

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