Healthcare Surrogates and Directives

End of life decisions can be difficult for most anyone, but infusing family dynamics can make the process that much more difficult.  Proper Health Care Directives can often help to circumvent any misunderstandings in the future.

A patient with capacity has a right to make his or her own medical decisions, including whether life-sustaining procedures should be used.  It is important to remember that a patient can be competent to make healthcare decisions despite suffering from a mental illness.

What are Healthcare Directives?

Healthcare Directives allow for adults who have decision-making capacity to deal with future care issues by one of three methods:

1. Written Instructions – Also known as a living will.

2. An agent – Also known as a proxy or durable power of attorney for health care.  A healthcare agent has authority to make a decision about life-sustaining procedures.  The agent is to make a decision consistent with the patient’s wishes or what is in the patient’s best interest, if wishes are unknown.  If more than one agent is designated in the healthcare directive, and those agents do not agree on a medical decision, the matter can be referred to Patient Advisory Committee (Ethics Committee).

3. Oral instruction – Must be made to the proper medical staff, witnessed and documented in the patient file.

Patients can revoke healthcare directives at any time and there is a strong presumption of competency when a person tries to revoke a healthcare directive.

What are Healthcare Surrogates?

If a patient has not designated a healthcare agent, the court has not appointed a Guardian, and the person can no longer make healthcare decisions (as determined by 2 physicians) a surrogate has the authority to make the decision.  There is presumption of consent to treatment in an emergency.  Surrogates are asked to make ONE decision (i.e. will you consent to this surgery or can we transfer the person from a hospital to a nursing home).  Surrogates are not making health care decisions on an ongoing basis.

Individuals asked to make surrogate decisions are placed in a particular class and may be consulted only if the next higher in unavailable:

1. The person’s guardian

2. Spouse/Domestic Partner

3. Adult child

4. Parent

5. Adult sibling

6. Friend/Relative

Surrogate decision making is not valid if the patient has expressed disagreement about the treatment, even if the patient did not have capacity when expressing such disagreement.

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

Breaking Down the Myths and Misconceptions of Common Law Marriage

I’m sure you’ve heard a statement like this one before: “If you live with someone for seven years then you’re considered married.”

Well…that isn’t actually true.

In fact only 11 states and the District of Columbia still recognize common law marriage.  Fewer and fewer states are recognizing common law marriage as it is a lot more difficult to prove than just simply living with someone for a certain period of time.

Disclaimer here: I can only specifically speak about the state of common law marriages in Maryland and the District of Columbia.

Maryland does not recognize common law marriage.  In order to be married in the State of Maryland you must do it the "traditional" way.  This includes obtaining a marriage license, having a marriage ceremony, and receiving a valid marriage certificate.

The District of Columbia does recognize common law marriage, but it isn’t easy to prove, especially if one person believes a common law marriage exists and the other person does not (this tends to be motivated by financial factors upon divorce).

In order to prove a common law marriage in the District of Columbia the following four factors need to be met:

1. No impediment to the marriage;

2. A present intent to be married to each other during the marriage;

3. Cohabitation; and

4. The parties hold themselves out as husband and wife in the community.

The second factor is the trickiest.  A present intent to be married to each other during the marriage actually means that in the absence of an actual ceremony, during the marriage, the parties had to acknowledge a present intent to be married to each other, and not a future intent to be married (i.e. being engaged).  

The lesson here is a simple one, if you live in the District of Columbia, it is much easier to just go ahead and get married with a license and a ceremony, because it’s going to cost you a lot more money to prove that you have a common law marriage then if you just have a marriage certificate upon divorce.  

And just remember there’s no such thing as a common law divorce…

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

Collaborative Law

Civil litigation is expensive, time consuming, and emotionally draining; but it does not have to be this way.  Many forms of Alternative Dispute Resolution (ADR) exist to avoid going to court, save time and money, and reduce the stress of legal proceedings. One such form of ADR is collaborative practice. Collaborative practice opens the door to a more holistic form of representation.

In addition to the general ADR benefits, collaborative practice also encourages mutual respect, keeps the parties in control of the process and seeks to solve problems through interest-based discussions to find mutually agreeable solutions that are the most efficient and create the best all around agreement. The collaborative approach shifts the focus of the representation to the parties’ underlying interests, needs and objectives, finding the best route to satisfy the parties’ mutual goals while following all ethical obligations.

But first, what is Collaborative Practice?

Collaborative Practice is a form of ADR that requires transparency between the parties, attorneys, and any coaches (mental health professionals to guide the parties), financial specialists, child specialists and any other “team” members, an agreement not to litigate, and a commitment to respect the shared goals of the parties. The means of reaching the end goal of a divorce is to cooperate to find the best solution for every issue involved, rather than the best that any one party could get from a judge.

Sounds great, so what’s the catch? To start a collaborative process, the parties, attorneys, and rest of the team must sign a participation agreement stating that each professional team member’s participation in the process is limited – that is to say that any attorney a party hires for collaborative may only participate as a collaborative attorney. If the process fails and the case proceeds to litigation, the parties must find new counsel, and the collaborative attorneys must transfer the case to the new attorneys, and most of the collaborative process remains confidential. This limitation applies not only to the attorneys, but entire professional team including coaches, financial experts and child specialists, if retained.  

How do you tell if collaborative is the right method for a case?

The crux of collaborative practice is trust and transparency within the team; therefore, one spouse cannot intimidate the other. Such a relationship could lead the intimidated spouse to simply agree with the other, rather than voicing his/her own opinion, thoughts and interests. In a setting where sharing is so important, the intimidation must be overcome. Additionally, the parties must be reasonable and willing to see the process as something other than a ‘if you get this, then I get that’ system. Rather than breaking down each aspect of the marriage and splitting it between the spouses, the collaborative approach finds the best solution for each aspect and the team works to combine the best solutions and the parties’ goals into one agreement.  

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

2017 Superlawyers Rising Stars

We are pleased to announce that Jessica Markham and Jillian Morris have been selected as 2017 SuperLawyers Rising Stars in Maryland.  Thank you to all our peers for their support and nominations!

Collecting Toys for Toys for Tots

Markham law firm is pleased to announce that we are an official Local Toys for Tots Drop Site and we will be collecting toys through December 16, 2016.  You may drop off toys at our office from 9-5, Monday through Friday, effective immediately!

What is a DeFacto Parent and what does it mean?

       Although slow on the uptake, Maryland has finally gotten on board with giving de facto parents custody and visitation rights with their (non-biological) child. Let’s break it down – what is a “de facto” parent? A de facto parent is a person who in all senses acts, appears, and is understood by the child, the parent, and society at large to be the child’s parent. However, there is always a catch – here it is that the parent is not actually related to the child, biologically, or legally such as through adoption. Previously, Maryland held that in such circumstances, the biological or adoptive parent had absolute rights over the child in terms of custody and visitation, and could cut off access to the non-related parent.

            Imagine a non-married couple of 5 years gives birth to a beautiful baby girl. The child is biologically related to one parent, but not the other. They name the child with both last names, send out birth announcements together, and hold themselves out in the community as equal parents, such as going to the parent teacher conferences together, sharing transportation of the child to events, and playdates, and sharing in the child’s care at home with cleaning, mentoring, education, and homework, etc. For some reason, when the child is 7 years old the relationship between the parents sours, and biological Parent A moves out, taking the child. Non-biologically related Parent B seeks to continue the relationship with the child, but is blocked by Parent A.

            Parent B can seek to establish de facto parent status, which would result in a court Order to allow Parent B visitation and/or custody of the child, just as Parent B would be able to do if s/he was a biological parent.

            Parent B must first establish that s/he satisfies the 4-factor test:

        1.    Parent A (the biological parent) consented to the establishment of the parent-like relationship between the child and Parent B;

           2.     Parent B and the child lived in the same home;

           3.     Parent B assumed the obligations of parenthood without the expectation of financial compensation from Parent A; and

        4.   Parent B has been in a parental role sufficiently long enough to create a bonded relationship that is parental in nature.

        Once Parent B satisfies the 4-factor test, then s/he must prove that it is in the best interests of the child to have a parental relationship with Parent B. The 4-factor and best interest test is not easy to prove, though it can be done.

        Courts want to keep parents in a child’s life if that parental relationship is going to be beneficial to the child.  However, the Court will make sure that it is only awarding custody and visitation to people who are truly parents, by the intent of Parent A, function Parent B, and the intent of Parent B. Courts will be extremely careful only to award custody and visitation to a person who was truly a parent in the past and present, and intends to remain a parent in the future.

            This is a new and burgeoning area of Maryland law. The information explained here is to present the new law in Maryland, which is likely to change and evolve as cases arise.

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

How to Make Your Divorce as Difficult as Possible

I read somewhere that readers appreciate "How To" lists.  Since I couldn't think of one that hasn't already been done to death, here is a reverse "How to" list:

If you'd like to make your divorce as negative as possible, be sure to:

1. Bad mouth your soon-to-be-ex to anyone who will listen to you.

2. Make life changing decisions. Don't consult a lawyer. Or consult one way after the fact.

3. Try to alienate your children from your spouse. Or simply explain everything that has happened to you, and ask them to side with you or to speak to your spouse on your behalf.

4. Post detailed play-by-plays on your social media accounts.

5. Use litigation to exact revenge. Be surprised when litigation doesn't make you feel any better. Prioritize "winning," "making a point" or "the principle of the thing," over your own self-interest.

Obviously, this is an over simplification of complicated issues. Everyone loves winning, and making a point. Right?  Divorce is complex and highly emotional.  But don't do ALL, or most of these, repeatedly, and expect a positive impact on your divorce. 

Areas of Practice

We receive a number of calls on a regular basis, inquiring about the services we provide. The short answer is that we handle all areas of family law in Maryland and Washington D.C.  However, to clear up questions, we've created a new page on the website that describes our areas of practice a little more fully.  Please check it out! 

http://www.markhamlegal.com/legal-services/

Starting a business... It's a New Year!

I started this firm in 2015, and I am so proud of what it has become, and the high quality of work that we do here every day. 

One of the most unexpected things about starting my own business, is being approached by others who want to do the same.   It has been so rewarding talking to others about their (sometimes previously unspoken) dreams to start their own businesses, hearing their aspirations and talking about my experiences. 

When I’m asked “how I did it” I tell them my story.  In a nutshell, it consists of taking a leap of faith and working very hard day in and day out, with a group of wonderful women who do the same.  Then I tell them, “If I did it, you can do it too.”

A good friend of mine had been dreaming of starting her own retail business for some time.  After speaking to me about the opening of my firm for many months, she decided to expedite her plans.  She told me that I was an “inspiration” to her.  That was such an unexpected compliment that I never imagined I would receive. I am so pleased that I could motivate or inspire someone else to chase her dream and make it seem all the more attainable.  I know that I have been inspired by so many others, in the legal industry, and outside of it as well.

So, looking back on my 2015, and looking forward to 2016, I say, life is short.  Chase your dream.  If you’re thinking of starting a business, consider giving it a fair shake this year.  I wish you all the best in your endeavors!

Things I like about practicing family law, in no particular order

Things I like about practicing family law, in no particular order...

1. Helping people envision a new future for themselves. People tend to start out disillusioned and unclear on the future. I like helping them figure out next steps. 

2. Getting to know interesting people. Most of my clients are extremely interesting and I love hearing about their work, families and what makes them tick. Getting to know each client is an important step in helping them identify and reach their goals. 

3. Working with professionals who are experts in their fields. I often work with mental health professionals (social workers, psychologists, psychiatrists), accountants and financial advisors. They've receiving extensive training in areas where I've received minimal training by comparison. I love having some of their knowledge rub off on me. 

4. Problem solving. Every day I am faced with problems to solve. I love brainstorming, particularly while mediating. Are the parties fighting over how to divide up the pie? Redefine the pie. Get another pie. Or a bowl of fruit. Is it even about the pie? Or something else?

5. Every day is different. And that's an understatement.