Estranged spouses and the FHCDA

[Alejandro]

Hello all-

I was wondering if any of you have run across instances where the
statutory preference under the FHCDA for a spouse to serve as
surrogate decision maker has been set aside in favor of other family
members where the spouse was still legally married but living apart
from his incapacitated spouse. The married couple in this case had
been living apart for several years (with quite a bit of acrimony
between them) without a separation decree before the accident that led
to one spouse's incapacity. Does the FHCDA contemplate a "best
interests" test that can overcome the statutory preference?

Ideally I'm looking for case law, but I realize that the relative
newness of the FHCDA may preclude anything meaningful on point.
Advisory opinions, administrative determinations, and personal
professional opinions may help where no case law exists.

Thanks for your help!

Alejandro Taylor, Esq.
Barry Gold '70 Health Law Clinical Fellow
Albany Law Clinic & Justice Center

[Thaddeus Mason Pope]

While the spouse remains almost at the top of the list unless
"legally separated," the spouse like any surrogate must comply
with the applicable decision making standards. You may have
grounds that the spouse surrogate is not making and cannot
make, given the history here, "patient-centered" decisions.

--------------------------------
Thaddeus Mason Pope, J.D., Ph.D.
Widener University School of Law
4601 Concord Pike, Room 325
Wilmington, Delaware 19803

T: 302-477-2230
F: 901-202-7549
E: tmp...@widener.edu
W: www.thaddeuspope.com