The Florida case of a woman prohibited from visiting her partner of 18 years as she lay dying in a hospital has inspired President Obama to move forward on one of his campaign promises: to require hospitals that receive federal funding to allow visitors designated by the patient without consideration of “race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.”
The recently released Memorandum directs Kathleen Sebelius, the Secretary of the Department of Health and Human Services, to:
[i]nitiate appropriate rulemaking . . . to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.
The case involved Janice Langbehn and Lisa Pond, who suffered an aneurysm while on vacation in Florida. Miami’s Jackson Memorial Hospital had refused to let Langbehn and their adopted children visit Pond, who later died in the hospital. Langbehn and Lambda Legal then sued the hospital for negligence per se, negligent infliction of emotional distress, and intentional infliction of emotional distress (PDF); the hospital countered that it had no legal duty to allow visitors.
A Florida district court judge agreed with the hospital and dismissed the suit in September 2009. “Decisions as to visitation must be left to the medical personnel in charge of the patient, without second-guessing by juries and courts,” wrote Judge Adalberto Jordon.
Much has been made of the fact that Langbehn had a valid power of attorney (POA) to make decisions regarding Pond’s care and still was not admitted into the hospital room. While logically this may not make too much sense (someone has the right to literally make life and death decisions for someone else but isn’t permitted to see her?), it is important to recognize the legal function of a POA.
As discussed on LegalZoom.com, a power of attorney “lets you appoint someone you trust to manage important financial and legal matters on your behalf”; until President Obama’s memorandum, however, there was no rule, regulation, or law that required hospitals to let the person with the POA visit the patient. As most hospitals have policies limiting visitation to immediate family members, anyone outside that circle (even with a valid POA) could legally be excluded from visits.
Under this new proclamation, however, those designated in legally valid advance directives such as durable powers of attorney and health care proxies must be allowed access to the patient (absent legitimate reasons related to medical care).
So, should you have a power of attorney and living will? Absolutely. These documents are the only way to be sure you will have your wishes regarding medical treatment, and now, who visits you, carried out should you become incapacitated.
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