Personal Independence & Incapacity Care

Personal Independence and Incapacity Care

This is our third article about the importance of planning for physical or mental disability.  In a prior article, we focused on financial management planning alternatives for persons facing potential health crises and incapacity.  In our last article, we noted that planning for nonfinancial issues may have even greater personal impact and suggested how to effectively communicate your wishes about your future health care.  In this article, we address how to make decisions about your future living arrangements and personal care while you are alive, how to make decisions about your remains after your death, and how such decisions can be legally and effectively communicated.

Your Personal Care is First and Foremost a Family Affair

For centuries, personal care of the elderly has been love-based and family-centric.  Just as we love and feel responsible for caring for our juveniles, part of our culture is that we reciprocate this affection and attention for those who cared for us when we were young and could not effectively do so.  As family members age and face impending incapacity, where they will live when they can’t maintain the normal routines of daily living is generally a personal or family decision.  With that in mind, it makes sense to have these discussions early so that all family members are clear and on board as to how this will work when this time comes.  Evidence these decisions by memorializing them in writing to make it clear what your wishes are if the time occurs when you can no longer voice your desires.  This evidence need not be legalistic or formal.  The evidence is better if it is clearly a communication of your personal desires and intent.  Letters and email messages will suffice if they are maintained where they can be found and read in the future.

Court-Appointed Guardians of Your Person

What happens if you are incapacitated and there is no family to rely on or if, in a diminished state, you clash with what others think is best for you.  This may be where a court is called upon to step in to determine who or what decision-making is in your best interest.  In Maryland, a court is authorized to appoint a “guardian of the person” for a person who is judged from clear and convincing evidence to lack “sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter…”.  In this regard, the court looks to determine whether the person before it is “unable to provide for the person’s daily needs sufficiently to protect the person’s health or safety” and who “as a result of this inability requires a guardian of the person.”

After appointment, this guardian of the person becomes an officer of the court who is designated to decide what is best for the ward.  With this in mind, it is a good idea to designate in advance who you would prefer to be the guardian of your person were a court to find that you need one.  Indeed, Maryland law provides a priority list for who is entitled to appointment as a guardian of a disabled person, and first on that list is “a person, agency, or corporation nominated by the disabled person if the disabled person was 16 years old or older when the disabled person signed the designation and, in the opinion of the court, the disabled person had sufficient mental capacity to make an intelligent choice at the time…”  Such designations are often made a part of power of attorney documents because these documents are required to be carefully witnessed (and, in the case of financial powers of attorney, notarized).

In the absence of a designated person, the statutory order of priority entitles persons to be appointed in the following order:  the disabled person’s health care agent; then his or her spouse; then parents; a person, agency or corporation nominated by the will of a deceased parent; children; heirs if the disabled person were deceased; a person, agency or corporation nominated by a person caring for the disabled person; and, finally, any other person, agency or corporation considered appropriate by the court.  Note, however, that for good cause, a court may pass over a person with priority and appoint a person with a lower priority.  Therefore, in case guardianship proceedings are commenced in the future, it is best to make your wishes in a written form that can be presented to the court for use in its determination.

Maintaining Your Independence

How long you maintain your independence from family or guardian care will depend on a number of factors.  First and foremost, if you are a citizen of the United States, you have a constitutional right to “liberty” guaranteed by the Fourteenth Amendment that cannot be taken from you without due process of law.  Even family members cannot deprive you of that right without court action.  Importantly, as noted above and assuming that you have not committed a crime, a Maryland court cannot take that liberty away from you without a determination based on clear and convincing evidence that you lack sufficient understanding or capacity to make or communicate responsible decisions concerning your person.  Thus, as long as you can make or communicate responsible decisions, you have the right to do so and to live on your own.

Practically speaking, your ability to remain independent may depend on your personal finances.  If you can make and communicate your desire that your resources be devoted to maintaining your independence and if your finances are such as to allow these expenditures, you remain in control even though you cannot provide for your daily needs yourself.  In effect, your finances allow you to provide for your daily needs by employing others (such as hired caretakers) to do so or by entering an assisted living facility.  While decreased mobility (e.g., an inability to drive a vehicle) is often a reason for moving in with a family caretaker, this need not be the case if you can offset this decreased mobility using your resources (e.g., by hiring drivers and/or shopping services, etc.) or if, because of assisted living circumstances, such mobility is no longer so necessary.  For these reasons, planning to maximize your financial resources (including providing for long-term care and other insurance) and for who will manage your finances as you direct (if you no longer manage them yourself) becomes a very important practical aspect of maintaining your personal independence.

Anatomical Gifts and the Disposition of Your Remains

The capacity to make and communicate responsible decisions not only determines the extent of your independence while alive, it also allows you to plan and determine what happens to your body after your death.

First, under Maryland law, “an advance directive” may contain a statement by a declarant that the declarant consents to the gift of all or any part of the declarant’s body for the purposes of transplantation, therapy, research, or education.  Typically, one evidences such a gift in one’s health care advance directive, in a separate anatomical gift form witnessed by two adult witnesses, or in the donor’s will.  In any of these instances, it is best to also cause a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor’s driver’s license or identification card to make sure that health care providers are made aware of your wishes.  After making an anatomical gift, a donor may by law amend or revoke the document in which the gift is reflected.  You may wish to also note that any individual may instead explicitly refuse to make an anatomical gift of the individual’s body or part by signing or directing another to sign a record to this effect or by placing such refusal in his or her will.

In addition to planning for anatomical gifts of usable organs, “[a]ny individual who is 18 years of age or older may decide the disposition of the individual’s own body after that individual’s death without the predeath or post-death consent of another person by executing a document that expresses the individual’s wishes regarding disposition of the body or by entering into a pre-need contract” signed by the individual and a witness signing in his or her presence.  Such a document may provide for cremation as opposed to burial with embalmment and may designate who can make post-death decisions about these and other matters concerning the disposition of the individual’s remains.  If a person has not signed such a document, the following persons, in the order of priority stated, have the right to arrange for the final disposition of a decedent’s body: the decedent’s spouse or domestic partner; an adult child of the decedent; a parent of the decedent; the decedent’s adult brother or sister; a person acting as a representative of the decedent under a signed authorization of the decedent; the guardian of the person of the decedent (if any) at the time of the decedent’s death; and then any other person (including the decedent’s personal representative) willing to assume the responsibility.  If a decedent has more than one survivor, the majority of the class may serve as the person in charge of the body disposition.


When I ask clients for their goals in undertaking estate planning, I find that their primary concerns turn out to be maintaining control of their persons and property while alive and taking care of themselves and their loved ones if they become incapacitated.  Even more important than the transfer of family wealth is using those resources to maintain independence and control while alive.  I hope that this article has given you some food for thought about discussing with your family your decisions about your future living arrangements and personal care and about how to effectively memorialize those decisions so that they will be followed in the future.  Please feel free to contact us if we can help you clarify your thoughts and assist you through this process.

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Planning & Communicating Health Care Decisions
& Surrogate Decision-Making

Planning and Communicating Health Care Decisions and Surrogate Decision-Making

As we live longer, we face an increased likelihood of physical or mental disability.  In our last article, we focused on financial management planning alternatives for persons confronted with potential health crises and incapacity.  While financial management is important to assure the resources to carry through life and to pass on to loved ones, planning for nonfinancial issues may have even greater personal impact.  Whatever your resources, they may be ineffective if you don’t properly plan and designate future caretakers who will make the types of personal and health decisions you want made.  In this article, we address how personal health care decisions can be legally and effectively communicated.

Advance Directives for Health Care

Under common law, absent a public interest otherwise, we each have a right to determine who can touch our body or not touch our body at any given time.  For the purposes of deciding among health care alternatives, Maryland law provides that “[a]ny competent individual may, at any time, make a written or electronic advance directive regarding the provision of health care to that individual, or the withholding or withdrawal of health care from that individual.  Notwithstanding any other provision of law, in the absence of [such] a validly executed or witnessed advance directive, any authentic expression made by an individual while competent of the individual’s wishes regarding health care for the individual shall be considered.”  Note however that, for your wishes to be considered when you can no longer communicate, they should be spelled out in writing so that they can be read by health care providers without involvement of a court, or, if court involvement becomes necessary, so that the court has proof upon which to make a decision.

As Justice William Brennan noted in his dissent in the Supreme Court’s landmark 1990 Cruzan decision, “Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues.  Some patients, however, want no part of a life sustained only by medical technology.  Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity.”  If you wish to limit or eliminate artificial measures to prolong your life, you will want to execute a type of advance directive called a “Living Will Declaration”.  In effect, a Living Will Declaration is an advance directive that, in certain defined situations, health care should be withheld or withdrawn.  Maryland law facilitates such communication by defining common instances for such decisions in the event that you suffer a “persistent vegetative state”, “end-stage condition”, or “terminal condition” so that health care providers have a common understanding as to what these terms mean.  While you may wish to specify other situations where you don’t want your life prolonged by artificial measures (such as if you become a paraplegic) or you may wish to modify the Maryland definitions (such as to define the word “imminent” in the State’s definition of “terminal condition”), these definitions become a good starting point for expressing your intent about end-of-life treatment in a manner that others will understand.

In addition to living will declarations, Maryland and other states now require health care facilities to maintain a “Medical Order for Life-Sustaining Treatment” (commonly known as a “MOLST”) as a part of a patient’s medical records.  A MOLST is a written medical order signed by a physician, physician’s assistant, or nurse practitioner concerning the use of life-sustaining procedures, use of medical tests, patient transfers from a hospital to a nonhospital setting, and other appropriate treatment matters across various health care settings.  By law, the MOLST is supposed to be consistent with the patient’s known decisions and advance directives (and the decisions of his or her health care agent or surrogate decision maker) so it is important that you provide copies of all of your advance directives for care to your health care facility upon entry.  It is generally a good idea to review and prepare a MOLST form ahead of time to go over the decisions to be made at the health care facility’s MOLST interview.  (You can download one of these forms from our website at My experience is that if a competent patient has completed a reasonably contemporaneous MOLST worksheet, that will be the basis of the one ultimately entered at the health care facility.  Such a completed written MOLST worksheet is itself also an effective written advance directive regarding your wishes about your health care or the withholding of health care.

Advance Directives for Surrogate Health Care Decision-Making

Since it is virtually impossible to anticipate all the potential health care decisions that might need to be made were one to become incapacitated, it is important to designate a surrogate to make those decisions in the manner that you would want them to be made.  In this regard, Maryland law authorizes “[a]ny competent individual . . ., at any time, [to] make a written or electronic advance directive appointing an agent to make health care decisions for the individual under the circumstances stated in the advance directive.”  When making an advance directive to appoint a health care surrogate, be sure to designate alternative agents to act in this capacity in case one designated surrogate is unable or unwilling to act.  Both primary and alternative health care agents may be appointed to act together as co-agents, individually by themselves, or consecutively in a line of succession.

Unless otherwise provided in the document, an advance directive by law only becomes effective when the declarant’s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision.  “Incapable of making an informed decision” means the inability of an adult patient to make an informed decision about “the provision, withholding, or withdrawal of a specific medical treatment or course of treatment because the patient is unable to understand the nature, extent, or probable consequences of the proposed treatment or course of treatment, is unable to make a rational evaluation of the burdens, risks, and benefits of the treatment or course of treatment, or is unable to communicate a decision.”  Know therefore that, in naming a health care agent, you are not giving up the right to make your own decisions.  You retain that authority until two doctors determine that you can no longer make informed decisions for yourself or unless you designate other circumstances as to when you want your nomination to become effective.  Should you choose to do so, you may designate persons (such as family members) other than physicians to decide when the designation takes effect.

If you fail to designate who you want to make health care decisions for you when you can no longer make informed decisions and the need for a surrogate arises, Maryland law provides a priority list for who is entitled to be your decision-maker in this order: your guardian, if one has been appointed; your spouse or domestic partner; an adult child; your parent; your adult brother or sister; or another friend or relative who demonstrates specific facts and circumstances that show regular contact and familiarity with your activities, health, and personal beliefs.  Individuals in one particular class may be consulted to make a decision only if all individuals in the next higher priority are unavailable.  Since the first priority class is a guardian appointed by a court, it is generally always better to name who you want to serve in an advance directive rather than to leave such a court appointment to chance.

HIPAA Authorizations for Release of Protected Health Information

In 1996, Congress passed a law entitled the Health Insurance Portability and Accountability Act (“HIPAA”) that limits the use, disclosure, or release of a patient’s “individually identifiable health information”.  While the main purpose of HIPAA was to help consumers maintain health insurance coverage as they changed locations and jobs, Congress was concerned that in doing so, it was increasing the likelihood for inadvertent disclosures of private health information as people moved around.  Congress decided that such disclosures could only be avoided if harsh penalties were imposed on health care providers who released individually identifiable health information without explicit patient authority.  HIPAA’s success and the resulting provider reluctance to release health information to persons other than their actual patient make it important that, in addition to declaring who you want to be your surrogate decision-makers, you authorize them to obtain individually identifiable health information about you.  A written Authorization for Release of Protected Health Information (or “HIPAA Waiver”) is a means to make sure that your designated surrogate can obtain the information necessary to make meaningful decisions.  Very often, the designated surrogate will need to get health care information about you from many different sources, not all of whom know your particular current circumstances.  A HIPAA Waiver is a proactive approach to making sure such health care information will be available to your health care agent from sources who otherwise fear being hit with a large fine for disclosure.  In addition, you may wish to allow family members to have individually identifiable health information about you to provide them with information about inherited health conditions.  Therefore, make sure that your HIPAA Waiver names both your designated health care agents and such family members and that the HIPAA Waiver survives your death.


The common thread here is that federal and Maryland law provide for and encourage you to plan and communicate your wishes in advance about how your personal health care decisions should be made if you are incapable of doing so at a later time.  We encourage you to think about and make these decisions now rather than to risk never addressing them.  As you can see, there are many tools available to document your wishes in writing so you can make sure they are available and understood when the need arises.  As always, I will be happy to discuss your future health care wishes with you and how available legal documents can insure that your expectations will be carried out.

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Lifetime Planning for Mature Single Individuals

Lifetime Planning for Mature Single Individuals

Estate planning generally addresses three primary goals: keeping the client in control of his or her person and property while he or she is alive and well; taking care of the client and his or her loved ones if the client becomes incapacitated; and carrying out the client’s wishes after death. Clients in different life stages tend to give different priorities to these goals. Younger clients without children seem inclined to favor the first goal over the latter two. For those with a spouse and/or children, effecting post-mortem goals becomes much more important. Older clients tend to be more concerned with incapacity and post-mortem goals because the threats posed by these life stages seem closer at hand. In fact, with lengthening mortality rates, incapacity planning is taking on increasing importance for everyone.

Mature Single Individuals and the Problem of the “Short Bench”

For those who are not married and who have no children (“i.e., Mature Single Individuals”), planning for the disposition of property after death may not be as important as it is for those with closer family ties. The potential costs of such planning often encourage one to delay or avoid such planning. With greater importance attached to the designation of surrogates in the event of incapacity, life planning for the Mature Single Individual can actually be more challenging than for the married couple with children.

The basic problem for Mature Single Individuals in planning for their incapacity (or death) is the recognition that while surrogates are understood to be needed, fewer trusted fiduciary alternatives seem available. In our society, incapacity care tends to be rooted in close familial connections built over lifetimes. Where such close familial connections are not available or are available only to a limited extent, the question becomes how to find suitable surrogates to act for the incapacitated client while assuring fidelity and proper attention to these fiduciary duties. Without close family ties, the goal is often also to postpone the designation and implementation of surrogacy until the last possible moment when it becomes necessary.

Court-Supervised Guardianship – The Default Nobody Wants

In the absence of planning, the State provides a default means of determining such surrogacy. Under Maryland law, a court may appoint a guardian to act for a “disabled person” who is unable to manage his property or unable to provide for the person’s daily needs to protect his health or safety. Once such an appointment is made (following a mandated procedure intended to protect the alleged disabled person from unneeded interference), the court stays involved in the guardianship by supervising the guardian’s activities for as long as the incapacity continues. Such court participation inherently requires use of the disabled person’s resources to pay for this process and the guardians involved.

The choice of who serves as the disabled person’s guardian is made in the court’s discretionary determination of what is best for the disabled person and in accordance with a statutory priority list of possible surrogates ranging from a spouse, parents, or the disabled person’s children to heirs at law or any other person, agency, or corporation nominated by a person caring for the disabled person or otherwise considered appropriate by the court. Importantly, however, the statutory priorities list is topped by a person, agency, or corporation nominated by the disabled person if he had the foresight to do so while he has (or had) sufficient mental capacity to make an intelligent choice. As a result, even if a guardianship is not deemed to be objectionable and regardless of the age of the individual involved and the length of the potential “bench” of potential surrogates, it becomes quite important to address the issue of surrogacy by planning well before the onset of any “physical or mental disability, disease, habitual drunkenness, addiction to drugs, . . . compulsory hospitalization, or disappearance”.

The Importance of Addressing Lifetime Planning Issues

A court-supervised guardianship of a disabled person generally means that either the person failed to plan effectively for his incapacity or that he or she had no available potential surrogates from which to choose. This is unfortunate because it is relatively easy to designate a surrogate by means of two types of documents: financial powers of attorney and revocable trusts for the management of an incapacitated person’s property and money; and health care powers of attorney and advance directives to manage his or her health and personal well-being. (We intend to cover these types of documents in greater detail in upcoming articles.)

The primary point here is that the Mature Single Individual should not put off addressing incapacity issues that may have a great impact on his future quality of life. Inertia should not be allowed to control just because the Mature Single Individual does not particularly care about post-mortem planning or because his “short bench” of potential surrogates makes decisions difficult. Most will not want these issues resolved by the discretion of a disinterested court acting at the request of some distant heir or other person nominated by a care agency or otherwise considered appropriate by the court. “Estate” planning involves both lifetime planning and post-mortem planning. Lower prioritization for one does not preclude the importance of the other. And talking through difficult decisions with an experienced professional will often clarify potential resolutions. The critical step in this process is the first one: picking up the phone to make the initial appointment. Once one begins, the rest is easy.

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