Gregory S. DuPont
What happens if there is a dispute over a power of attorney?
Under Ohio law (ORC 2133.08) there is a process set forth to resolve any disputes between interested parties when there is a dispute in regard to how one’s end of life decisions shall be enforced.
First and foremost, in the event that someone is in a terminal condition or permanently unconscious state and they have executed a properly witnessed directive for the withholding or withdrawal of life-sustaining treatment, the directive is mandatory. When combined with a properly executed Power of Attorney for Health Care, the law assures that provided the medical provider has properly determined, to a reasonable degree of medical certainty, that you are in a terminal condition or a permanently unconscious state, your wishes will be enforced. The person appointed as your advocate in the Power of Attorney for Health care advocates for your position but once they are satisfied that you are in that terminal condition or permanently unconscious state, they authorize the medical facility to take the action you want.
When There Is No Health Care Power of Attorney
In the absence of such a directive and a Power of Attorney for Health Care, it becomes more problematic. The statute goes on to establish certain conditions that must occur in order for the medical facility to have the authority to withhold treatment. First, if there is a clear directive regarding your wishes to not be given treatment that has been properly witnessed, there is one path and if there is no such directive there is a second path.
In both circumstances, the paths begin with a positive determination that the patient in fact is in a terminal condition or has been in a permanently unconscious state for the preceding twelve months. The attending physician must make a determination in good faith to a reasonable degree of medical certainty that the patient is not able to make informed decisions and there is no reasonable probability that they will regain the capacity to make those informed decisions.
In this circumstance treatment can be withheld if consent is obtained from one of the following (in order of priority): Guardian, spouse, adult child or majority of adult children, patient’s parents, adult sibling or majority of adult siblings.
Treatment can be withheld if all of the following apply:
- The patient has no health care directive that was not executed incorrectly indicating an intent to receive such treatment.
- There is consent of one of the following (in the following order of priority) Guardian, spouse, adult child or majority of adult children, patient’s parents, adult sibling or majority of adult siblings.
- The consenting individual is of sound mind.
- The facility proves that they have provided proper notice to those entitled to provide consent.
- There is no objection.
What do you mean by no objection?
If the process requires the consent as set forth above, then any person of lesser priority that is entitled to consent is also entitled to notice within 48 hours of the decision. That person then has the right to challenge the proceeding in probate court. If such a challenge is to be heard by the probate court, it must be held within 3 business days after the complaint is served upon the parties.
Dealing with a Family Dispute?
If you are dealing with a family dispute over a living will or health care power of attorney, we can help. Call the Law Offices of DuPont and Blumenstiel at 614-389-9711 to know your legal options.