A Maryland Advance Directive lets you make decisions about your medical treatment even if you cannot communicate those decisions yourself. By appointing someone as your agent and providing them clear guidelines in your advance directive, they can help you make choices you’d otherwise be unable to make in a medical emergency.
Below are a few key terms to keep in mind before executing an Advance Directive, as laid out in MD Health-Gen Code § 5-601:
- Declarant: A competent adult who creates an Advance Directive in Maryland
- Health Care Agent: An adult who you appoint in your Advance Directive to make health care decisions on your behalf. Health Care Agents can also simply be referred to as “agents.”
- Health Care Provider: A person or facility licensed and authorized to provide health care to individuals.
- Life-Sustaining Procedure: Any medical procedure, treatment, or intervention that uses mechanical or other artificial means to sustain vital bodily functions. This includes artificially administered hydration and nutrition, as well as resuscitation.
- Terminal Condition: An incurable condition caused by injury, disease, or illness from which no recovery can occur.
Choosing Your Agent
When selecting an agent, make sure you are familiar with the following information.
Who can you select as your agent?
As specified in § 5-602, you may choose any competent adult age 18 or older as your agent, with certain restrictions (outlined below). Common choices include a spouse, domestic partner, adult child, parent, sibling, attorney, or other fiduciary.
Who can you not select as your agent?
An owner, operator, or employee of a healthcare facility where you’re currently a patient cannot be your agent. This extends to any spouses, parents, children, or siblings of those owners, operators, or employees.
Additionally, if you have chosen a spouse as your agent, and either you or your spouse file for divorce or are legally separated, that spouse is disqualified as your agent, per § 5-602.
However, that former spouse may still remain as your agent if you are medically capable of making decisions on your own and have indicated an intent for them to continue to serve as your agent.
Can you have more than one agent?
Maryland allows you to choose a second person as an alternate agent in case your first choice is unavailable, unable, or unwilling to act as your agent, per MD Health-Gen Code § 5-603.
What healthcare decisions can your agent make on your behalf?
Per § 5-605, your agent must follow any specific directions you include in your Advance Directive.
An Advance Directive can empower your agent to use their best judgment in certain circumstances. If your wishes regarding treatments are unknown and not specified in your Health Care Directive, the agent must consider your best interest.
Your agent can make decisions such as:
- Whether to administer and/or remove life support
- When to continue or discontinue treatments
- What types of treatment will be allowed
- Organ donation decisions
These are only a few examples of the choices that your agent may make for you.
What healthcare decisions is your agent unable to make on your behalf?
§ 5-605 clarifies that your agent’s decisions cannot be based on a pre-existing, long-term mental or physical disability or any economic disadvantage you (as the patient) might be suffering. In addition, the agent cannot authorize sterilization or treatment for mental disorders.
If you wish for your agent to also make non-healthcare-related decisions on your behalf, use a Maryland Power of Attorney form.
When is your agent able to begin making decisions on your behalf?
As stated in § 5-602, your agent can begin to make health care decisions once your attending doctor and a second physician certify, in writing, that you’re incapable of making informed decisions. At that time, any agent you’ve appointed in your Advance Directive can begin making decisions concerning your healthcare.
How to Complete a Maryland Advance Directive
To complete a Maryland Advance Directive, § 5-601 provides three options:
- Sign and date a document indicating your health care wishes in the presence of two witnesses, who must be 18 or older. The witnesses must sign the document. Note: The person you assign as your agent cannot be a witness.
- File an electronic Advance Directive form in accordance with specific signature requirements.
- Give an oral statement to your doctor in the presence of at least one witness. In Maryland, an oral Advance Directive must be documented in your medical record, dated and signed by the physician and the witness.