Maryland Bar Bulletin
Publications : Bar Bulletin

Editor: W. Patrick Tandy

May, 2004

It is June 1967, and a rebellious young son heads for the west coast dreaming of a summer of free love and good drugs. He leaves behind parents who will not forget the pain their son has inflicted on their family. Except for periodic desperate requests for money, they do not communicate for decades, until the son hears that his father had a stroke and is now in a coma. Rushing to his bedside, the son needs his father to regain consciousness so that all can be forgiven. The father’s advance directive states that his life is not to be extended by any means if he is in a coma. But the son objects to any decision that may shorten his father’s life, using every possible argument; he is the Black Sheep on a White Horse.

As a surrogate decision maker, a family member or close friend may make health care decisions for an individual who is incapable of making an informed decision about the provision, withholding or withdrawal of a specific medical treatment under the Health Care Decisions Act. However, this statute applies only if the individual has not already designated a health care agent or if a court has not appointed a guardian for the individual. The following persons or groups, in order of priority, may serve as a surrogate decision maker: guardian, if one has been appointed; spouse; adult child(ren); parent(s); adult sibling(s); or, close friend or other relative of the patient who is competent and presents an affidavit to the physician stating the relationship between the individual and the patient with specific facts demonstrating that the person has maintained regular contact with the patient sufficient to be familiar with the patient’s activities, health and personal beliefs.

A potential problem arises if all of the members in the class do not agree about a health care decision. If the patient is in a hospital or related institution, the attending physician or a surrogate must refer the case to the institution’s patient care advisory committee. The physician must then act in accordance with the committee’s recommendation or transfer the patient out of the institution. If the patient is not in a hospital, a physician may not withhold or withdraw life-sustaining procedures unless there is complete agreement among all persons in the same class.

It is not uncommon for family members to disagree with and even resist the health care wishes of a now incompetent loved one to further their own agendas. Such a situation played out in the case of In Re: Sophia E. Foley. Sophia E. Foley had executed a health care power of attorney designating her husband, Michael, as her health care agent.

The document further required Sophia’s wishes to be followed by her health care agent regardless of “any contrary feelings or beliefs of members of her family, friends or guardian.” Sophia suffered from dementia, diagnosed by her physician as most likely Alzheimer’s disease, and she became incompetent to carry out her normal functions. Her sister, Eugenia Berg, filed a guardianship petition alleging that Sophia’s dementia was caused by Lyme disease and that the health care Sophia received under Michael’s direction was inadequate because Michael either refused or failed to have his wife tested for Lyme disease. Shortly after the petition was filed, Michael had Sophia tested, and the results showed that she was not infected with active Lyme disease. A few years after the petition was dismissed, Eugenia again filed a guardianship petition and requested the court to authorize physical examination and testing of Sophia.

Justice was not served for Sophia.  She executed a valid health care power of attorney document.  She appointed her husband as her health care agent.

Michael cared for her and provided the health care that was advised by Sophia’s physicians. Yet a family member who did not have health care decision-making authority made her voice heard, so Sophia was ordered to be tested again for Lyme disease. Sophia died in March 2004.

To stop the Black Sheep on the White Horse, clients must sign carefully-drafted and strongly-worded health care decision-making documents. Furthermore, advance directives and health care powers of attorney must list not only the person(s) who is to act on one’s behalf but also who is not to be consulted regarding health care decisions. Only with explicit documents strongly stating the instructions of the principal can the health care agent, family members and the court know the limits of their health care decision-making authority.

Jason A. Frank is a member of the MSBA Elder Law Section Council and Chair of the Section’s CLE Committee. S. Deepa Saggare is a member of the MSBA Elder Law Section.