My mother in law has an advance directive that lists three people in successive order to act as agent. My wife is the primary agent and has been acting on her mother's behalf for the last five years in accordance with the directive. The language in the directive states that the next person listed would act as agent if my wife is 'unwilling or unable' to act as the agent.
We met with a social worker about this document, and she said that anyone listed as agent on the document would be entitled to the medical information about my mother in law (my wife's mother). The social worker interpreted the document to mean that if my wife could not be gotten ahold of, they would call the next person listed as agent on the document and so forth.
The problem with this is that my wife has never been unwilling or unable to act as agent, and in fact I think would need to tell the social worker and others of a change like this. It does not work the other way around, in that I do not believe that just because my wife cannot be gotten ahold of immediately that the next person just gets to step in as agent.
She does not want release of medical information to any others listed on the directive.
First, what you are describing is a healthcare power of attorney, not an advance directive (which has to do with end-of-life conditions). It is not uncommon for a healthcare POA to include authorization related to end-of-life conditions, and some actually can combine the two documents into one instrument with two parts, the first being the advance directive, and the second being the healthcare POA. The advance directive simply sets out the person's wishes in the event they suffer an end-of-life condition such as a persistent vegetative state with no brain function. As for the naming of an agent to make decisions for healthcare purposes, the first person named must always be the first one consulted to act; however, under your POA language, if that person is "unable or unwilling" to act, the next person named can act. "Unwilling" is easy to know: after reaching your wife, and she declines to act, then you know she is unwilling. "Unable" --if it is undefined in the document-- can either mean not reasonably available under the circumstances, or physically unable (on the other side of the world and unreachable, in a coma, etc.), or both. I imagine disputes may certainly arise, but the second and third successor agents named under the POA do not have carte blanche to act at all times whenever they choose. The person relying on the POA will want to inquire as to the availability of the first named agent under the POA and at the very least determine whether there appears to be a reasonable explanation as to their unavailability. Some healthcare decisions may not be the type that can wait until an exhaustive search for the first named agent can be completed. Certainly under exigent circumstances, the person who created the POA expects their agent, or their successor-named agent, to act expeditiously in their best interest. All persons named as an agent under any POA owes a fiduciary duty and a duty of loyalty to act solely in the best interest of the principal, and the person granting the POA will want any third party to be able to rely on their POA without liability. Therefore, your casting doubt on the successor agent's authority may have the effect of causing third-parties to refuse to honor the POA, and that may not be what your mother-in-law intended or wants. It seems to me that if there is a concern about a successor agent misusing the POA, the person who created the POA should make a change, remove that person, or be more specific about when and under what circumstances their successor agent may act.
Without seeing the actual language of the document, I can only answer based upon the wording used in your question. The "unwilling and/or unable" clause means just that, if the party, for some reason, is unwilling or unable to ACT AS HER AGENT, then the other successor would step in as agent. It normally does not mean that if they are unable to be reached then the successor agent steps in as Agent. However, without knowing exactly what is written in the ADR, this is the best answer that I can give.
This is NOT legal advice, this is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with you. You have not provided me with all the facts in a consultation, therefore my answer cannot address your specific legal situation and you should not rely upon my answer in your legal matter. I am an attorney licensed in Maryland.
If the advance medical directive your MIL signed is in fact the Maryland Attorney General's form then it contains the following:
If, prior to the time the person selected as my agent has power to act under this document, my doctor wants to discuss with that person my capacity to make my own health care decisions, I authorize my doctor to disclose protected health information which relates to that issue.
Notice the wording "prior to the time the person selected as my agent has power to act under this document" - - that should mean that all persons listed as successor agent are authorized to receive protected health information.
If your MIL wanted to restrict those successors, the form should have been revised to so state. If she is competent, she should revoke her prior AMD and execute a new one with that modification.
Best of luck to you and your family.
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