If you were suddenly to become so ill that you couldn’t make healthcare decisions for yourself, who would make them on your behalf? This question has taken on a greater urgency than usual during the COVID-19 pandemic, in which people who have no symptoms on one day can be grievously ill less than a week later.
Many people assume that their next of kin, such as a spouse or an adult child, would make important healthcare decisions for them if the need arose. But what if you are in a blended family? Or if a spouse and adult child disagree, who takes priority?
Unfortunately, this is not an uncommon scenario, especially in second or subsequent marriages when the patient’s spouse is not the parent of the patient’s adult children. In that case, the question of who gets to make a decision about a patient’s health can be a thorny one. The consequences may literally be life-and-death; even if not, the dispute can cause a permanent rift in a family.
Any family can have conflicts over healthcare decisions for an elderly family member, especially when it comes to end-of-life issues. A child may be unwilling to let go of a beloved parent. A spouse may struggle to face the fact that their lifelong partner is slipping away, or conversely, may not want to prolong their suffering.
Another common scenario involves two adult children who disagree about what treatment a parent should receive, or whether treatment should be discontinued altogether. In short, it is easy for well-meaning family members to end up on different sides of an emotional healthcare decision for someone who cannot express their own wishes.
When the family members who disagree are part of a blended family, there is an added layer of complexity. When the patient’s spouse is the parent of the adult children, there is often (though not always) an assumption that family members have the best interests at heart, even if they disagree.
In a blended family, that assumption of goodwill is often absent. The patient’s children and spouse may have distrusted each other even before the patient became ill. When a health crisis erupts and emotions are heightened, the patient cannot act as peacemaker between the factions. Instead, their health hangs in the balance in the dispute over who has the right to make decisions for them.
In most states, including Ohio, spouses are given priority to make health care decisions when the patient has not legally appointed someone to do so. That said, by the time a doctor asks the spouse to make a decision, permanent damage to family relationships may already have been done.
Fortunately, there are simple measures individuals in blended families can put into place to prevent bitter disputes or confusion over their healthcare wishes. In fact, every adult, whether or not they are in a blended family, should take these measures.
The first is a durable power of attorney for health care. This is a legal document that allows a person to appoint an agent to make medical conditions on their behalf if they become incapacitated and cannot communicate their wishes. “Durable” means that the power to make decisions continues while you are incapacitated. Your agent should be a person you trust to carry out your wishes (which you should, of course, discuss with them before the need arises). The agent is usually a close relative. Your agent has the authority to direct all of your medical care and can get access to your medical information.
Whom should you choose for your agent—your spouse or your adult child? It depends who you think will be more likely to abide your wishes, especially regarding end-of-life care. Your agent should also be someone who respects your relationship with other family members; there are horror stories about family members acting like agents who have kept other loved ones away from the patient’s bedside.
No matter whom you choose, you should let other family members know that you have appointed that person as your agent for medical decisions. Resist the temptation to name joint agents in order to avoid offending a family member who wasn’t chosen. If you have two agents, and they disagree, you are back to square one.
Just creating a durable power of attorney for health care doesn’t eliminate potential problems. Your agent should have a copy, as well as your primary care physician, and any hospitals where you receive treatment. Your treating physician needs to be aware that the document exists when decisions are being made.
In addition to having a durable power of attorney for health care, you should also have a living will. The power of attorney allows someone to make decisions on your behalf; the living will gives you the ability to dictate what type of treatment you would want to receive if you were to become permanently unconscious or terminally ill. A living will also allows you to specify whether you want to make anatomical gifts (become an organ donor).
In Ohio, unlike some states, a living will is legally binding; this takes a great deal of pressure off of your agent under a power of attorney for health care. You can, of course, revoke a power of attorney or living will at any time as long as you are legally capable, making a new one if you wish.
If you have further questions about who makes healthcare decisions for you if you are unable to, contact an experienced Ohio estate planning attorney to schedule a consultation.