38 yr. old husband is in the hospital after suffering stroke.. currently in ICU with swelling on the brain etc, awake and alert however is unable to speak, or write at this point. Has sound mind as far as we can tell and will respond to question via a nod etc. Father of husband with whom husband and wife live with and take care of suffered a massive heart attack 2 days ago and is not responsive. Father in law owns the house and is on bank accounts with husband. Drs. are explaining that there is no to little brain activity at this point and we need to make the decision to remove from life support.
This is a very complex situation and you need to speak to an experienced Elder Law Attorney as soon as possible.
Evan Farr is Certified as an Elder Law Attorney by NELF (National Elder Law Foundation), which is approved by the American Bar Association, and is a member of the Council of Advanced Practitioners of NAELA (National Academy of Elder Law Attorneys). Evan is licensed to practice law in Virginia, DC and Maryland, none of which have procedures for approving certifying organizations. NOTICE - Unless expressly stated otherwise, this communication: (1) is not legal advice absent an existing attorney-client relationship between us; (2) does not create an attorney-client relationship; (3) does not constitute an offer, acceptance, or contract amendment; (4) may contain confidential or legally privileged information protected by the attorney-client relationship and/or work product privilege; (5) is only for the use of the individual to whom it is intended by the sender to be sent, and if you are not such recipient, disclosure, copying, distribution or reliance upon this communication is prohibited; and (6) is not intended, and cannot be used, to avoid tax-related penalties pursuant to treasury department circular 230.
You will not be able to get a power of attorney for the father-in-law because he is not capable of granting it. You will need to file to become his guardian and/or conservator, depending on what the MD process is. Unfortunately, It sounds like he may pass away before you will be able to complete the process. You should immediately get a medical directive and power of attorney for your husband since he can respond. You need to contact an estate attorney in your area for assistance.
My answer is for general information only and does not imply that any attorney-client relationship has been created.
Please accept my condolences for the extreme burdens life has brought you.
A power of attorney is a legal right that is given, not taken. The principal (giver) must be legally competent, meaning alert and able to express will. Therefore, it is clearly too late for the power of attorney strategy, and any medical care decision must be made without it. Typically the doctor will turn to the "next of kin" which may or may not include only your husband.
For legal support, turn to local experienced elder law counsel.
Best wishes for an outcome you can accept, and please remember to designate a best answer.
This answer is offered as a public service for general information only and may not be relied upon as legal advice.
As noted by Mr. Farr, this is a complex issue which cannot be easily addressed by having power of attorney or advance directive documents prepared since your father-in-law, who is definitely incompetent, would need to sign them in order for you to act on his behalf. Most likely, you will needs to petition for an emergency guardianship for your father-in-law in the circuit court in which he resides. I would not recommend you pursuing this process alone, but you should seeks immediate counsel of a local elder law attorney.
Unless your father-in-law has already executed a healthcare power of attorney naming you or somebody else (your husband?), it is too late for that. If your husband is named POA for healthcare decisions, and his doctors believe him to be competent and he and that can communicate with each other, then he could make the decisions regarding his father's condition. In the absence of a healthcare POA, Maryland has a statute that allows family members, in degrees of preference, to make medical decisions for an incapacitated person without seeking a guardianship. I assume your father-in-law is either a widower or divorced so he does not have a wife. If your husband is his sole child, then your husband can make the decision if he is competent and can communicate his decision. If there are other children of your father-in-law, or if he has brothers or sisters, then those relatives can get involved and make a decision. If there is a dispute among relatives holding equal preference to decide, or if there are no competent relatives, then a guardianship will be necessary. You do not state whether your father-in-law has a living will/advance directive which declares his wishes in the event he is in a brain dead or permanent vegetative state, which would obviously help make any inal decisions in this regard. Consult a lawyer who handles estates, wills, guardianships, and/or eldercare law.
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