If you were in a car accident or became seriously ill and couldn't make decisions about your medical treatment, who would make decisions about your health care?
Many people are surprised to learn that in the District family members have no legal authority to make health-care decisions for an incapacitated adult. Although providers of health care traditionally have accepted decisions made by a patient's spouse, parents, or adult children, there is no legal basis for their doing so and hospitals are becoming increasingly uneasy about accepting third party consent (or refusal) for medical care.
Emergency, life-saving treatment will be provided without anyone's consent, if necessary. But after the first few hours, your family might discover that their only means of consenting to certain treatment for you, or requesting that a medical intervention not be initiated, would be through judicial proceedings.
The court could appoint a guardian for you -- but you would not be able to indicate who you prefer that person to be. Alternatively, the court might simply make the treatment decision itself.
There is a better way of dealing with such problems and that is to give someone legal authority to make health care decisions on your behalf, in case you become incapable of making them for yourself.
This can be done through a "durable power of attorney for health care." It is called a durable power because it continues in effect even if you become incompetent.
In the District, as in old common law, a power of attorney becomes void when the person delegating the power becomes incompetent. That is just when you would want it to take effect, if your purpose is to appoint someone to make decisions when you are incapable of making them for yourself.
Durable powers of attorney are legally effective everywhere in the United States except the District of Columbia.
A bill currently pending before the City Council would make durable powers of attorney legally valid for health care in the District. The Health-Care Decisions Act of 1985, introduced by Councilmembers Polly Shackleton and Charlene Drew Jarvis, would remedy two major deficiencies in local law:
* It would bring the District into conformity with all other jurisdictions by validating durable powers of attorney -- at least for health care.
* It would authorize family members to make health care decisions for an incapacitated adult who has not signed a durable power of attorney.
An important feature of the bill is a standard form that can be used to create a durable power of attorney. Once the form is filled out, dated, and signed by the person delegating the power and by two witnesses, it is a legally valid document.
The agents named in the document will have the same power to give, withhold, or withdraw consent to health care as a competent adult has for himself or herself. No legal fees need be involved and no court action is required.
The form also provides space for giving specific instructions. For example, you might want to direct (as in a "living will") that, in case you are ever diagnosed as terminally ill, no treatments should be used that only prolong the process of dying. On the other hand, you might want to give the opposite instructions: that everything possible be done to extend your life.
Although living wills (which usually decline treatment) are valid in the District, they apply only in cases of terminal illness and leave many questions of interpretation unanswered.
The Health-Care Decisions Act of 1985 (Bill 6-256) is very much needed in the District. It would provide all of us with a means of assuring that our wishes concerning health care will be honored, even if we are too old or too sick to make and communicate our choices at the time a decision must be made.
It would also assist families and nursing homes caring for elderly patients in need of surgery or invasive diagnostic tests. Finally, it would provide a legal basis for health care decision-making by close relatives of adult trauma victims and seriously ill patients of any age.
The bill is similar to the Model Health Care Consent Act approved in 1982 by the Commissioners on Uniform State Laws. Moreover, the use of durable powers of attorney for health care has been endorsed by the President's Commission for the Study of Ethical Problems in Medicine and Research, the American Bar Association's Commission on Legal Problems of the Elderly, and the American Hospital Association.
Comments on the proposed legislation may be addressed to Councilmember Wilhemina Rolark, Chairman, Committee on the Judiciary, The District Building, 1350 Pennsylvania Ave., NW, Washington, D.C. 20004.