By DANIELE E. HERNDON
Your significant other has reached the end of a long and painful battle with a terminal illness. As you have discussed many times, his wish is to die peacefully with pain management but no heroic measures. He cannot voice that wish, however, because he can no longer speak. The choice is in your hands. Or is it?
It depends on a number of factors, including whether your significant other has a living will, durable power of attorney, or advance directive and whether you are married or registered as a domestic partnership.
A durable power of attorney for health care is a legal document that names a medical decision maker if a person is incapacitated. It important for same-sex couples to know that if you do not have an advance directive naming your significant other or a friend as your agent and you are not married or registered as domestic partners, the hospitals and courts will look to your closest biological family member to make health care decisions for you, and your significant other will have no legal right to make such decisions, or in some cases, to even visit you in the hospital. Without this document, your significant other will also not be able to claim your body after death or direct the disposition of your remains.
A financial power of attorney can also be important to designate who will be in charge of financial matters in case of medical emergencies or incapacitating illness. Again, District courts will give blood relatives first choice to manage your significant other’s finances, even if you have a different choice.
A living will, or advance directive, is a legal document that specifies the types of life-sustaining measures you want to be used, if necessary, and which measures you do not want. This document can be important to persons living with terminal illnesses because it outlines end-of-life choices that may be contested by family members. In addition to having a living will, each partner should discuss their end-of-life choices with family members to avoid objections later on.
The purpose of the District of Columbia’s Health Care Decisions Act of 2003 is “to affirm the right of all competent adults to control decisions relating to their own health care and to have their right and intentions in health care matters respected and implemented by others if they become incapable of making or communicating decisions for themselves.”
Under the Act, an individual is incapacitated if he or she “lacks sufficient mental capacity to appreciate the nature and implications of a health care decision, make a choice regarding the alternatives presented, or communicate that choice in an unambiguous manner.”
It is important to note that there is a presumption that an individual is capable of making health care decisions. Specifically, the law provides that mental incapacity to make a health care decision may not be inferred from the fact that an individual: (1) has been voluntarily or involuntarily hospitalized for mental illness; (2) is mentally retarded; or (3) has a conservator or guardian appointed. Rather, mental incapacity to make a health care decision must be certified by two physicians.
If no durable power of attorney for health care decisions exists and a person has been certified to be incapacitated, then the following individuals, in the order of priority set forth below, may make health care decisions on behalf of the incapacitated individual: (1) A court-appointed guardian or conservator of the patient, if the consent is within the scope of the guardianship or conservatorship; (2) the spouse or domestic partner of the patient; (3) an adult child of the patient; (4) a parent of the patient; (5) an adult sibling of the patient; (5A) a religious superior of the patient, if the patient is a member of a religious order or a diocesan priest; (5B) a close friend of the patient; or (6) the nearest living relative of the patient.
Under the Act, if your significant other is not your spouse or domestic partner, you will have to petition the court to be appointed as guardian, or get in line behind a bevy of people who may or may know or care about your loved one’s wishes.
Even if a guardian or conservator is appointed, however, the spouse and all other individuals of lower priority as set forth in D.C. Code have the right to challenge in court any decision made by a person of higher priority, including the guardian or conservator. Moreover, if a spouse or other person of lower priority can demonstrate a better knowledge of the wishes of the patient or, if the wishes of the patient are unknown and cannot be ascertained, is better able to demonstrate a good-faith belief as to the wishes of the patient, then he or she can rebut the order of priority established by statute.