Interpretation of Health Proxy

[Joan_Findlay]

My father has Alzheimer's and has been declared incompetent. His Advanced Directive appointed my mother, who is now deceased, as his health care proxy. It then states that if his health proxy is not able to serve, he appoints his three daughters Jane Doe, Mary Doe and Susan Doe, jointly, as his health care co-proxies. In a separate paragraph, his directive states that he appoints his health care co-proxies to serve in such capacity in the order that he names them in the Advanced Directive. There are no provisions for majority rule.
Is Jane the health care proxy? Or does the first sentence appointing the three daughters "jointly" mean that all daughters must act together? What is a reasonable interpretation of my father's health proxy?

 

[dee_dub]

"Jointly", in absence of any other language, usually means they need to act unanimously. Without having the document in front of me, it sounds like there are two options:

1) The mother is proxy.
2) The three sisters, jointly, are proxy.

The language about "in that order" means "first the mother, then the three daughters". Since the mother is deceased, the only other option is the three sisters acting jointly (or as many of them as care to act).

You might wish to consult with a local attorney to confirm that.

 

[Joan_Findlay]

Thanks very much for your reply.

The language actually says: "if my healthcare proxy (mom) is unable or unwilling to serve, then I nominate, constitute, and appoint my alternate health care proxy or co-proxies, as the case may be, to serve in such capacity, in the order I have named them in this instrument...."

The language prior, appointing the three siblings jointly states: "I appoint my three daughters, Jane, Mary, Susan, jointly, as my alternate health care co-proxy...."

My attorney is arguing that I (Jane) am the proxy. The word "jointly" however, is problematic, but the language (two paragraphs above) seems to make it clear that Jane is the proxy.

Does this change your opinion?

Thanks again.

 

[dee_dub]

It sort of changes my opinion - at least, there is some ambiguity here. I can see why your attorney is arguing what they are arguing.

Are those quoted paragraphs? Is there anything that might possibly be germane where those ellipses are?

A court interpreting this will try to give meaning to all the provisions. I suspect that the weight of the provisions indicate joint proxy, not alternate proxies.

Here is a thought: despite the will not providing for majority rule, many jurisdictions have enacted laws to that effect. Where proxies are jointly appointed, if there is disagreement, majority rules. I am not sure if that is the law in your state.

 

[Joan_Findlay]

Thanks again. There's nothing else germane regarding the proxies. There are no laws in Alabama giving majority rule in these types of joint powers, so my attorney believes the judge has two choices: unanimous rule of all three, or I am the proxy. His argument or persuasion will be that unanimous rule will not work in the case of health care. What happens if one person disagrees (which is the case, as we wouldn't be going to court otherwise)? Then nothing will happen. Also, we have ample evidence that one of my sisters had grossly mismanaged my mother's care, and the other sister is absent. I have been the primary caregiver for my father. I am hoping that will sway the judge.
Please let me know if you have other thoughts. I appreciate your input.

 

[dee_dub]

Nope, that's about it. I think your attorney is making about the best argument available in the situation. Good luck.