A Maryland Advance Directive lets you make decisions about your medical treatment even if you’re unable to 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.
1. What is a Maryland Advance Directive Form?
As laid out in the Maryland Code, Health General Section 5-601, an Advance Directive is a document or oral statement that provides instructions about your healthcare. You can use it to appoint someone that you trust to make health care decisions on your behalf, in the event that you lose the ability to make such decisions yourself.
The instructions that you leave in your Advance Directive will inform health care providers, as well as your appointed health care agent, on how you wish to be medically treated following a debilitating event.
Putting together an MD Advance Directive will answer these important questions:
- Who will carry out my medical wishes, in the event that I’m unable to communicate them?
- If I can’t communicate my wishes, what types of treatment do I want – and not want – to receive?
- As I’m being treated, will my religious, moral, or other beliefs be followed?
Below are a few key terms to keep in mind before executing a 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 there can be no recovery.
Note that an Advance Directive is sometimes also referred to by other names, such as:
- Health Care Power of Attorney
- Medical Power of Attorney
- Living Will
- Health Care Directive
Before executing your Maryland advance directive, it’s important that you understand the difference between an advance directive and a living will.
2. Who Should Have a Maryland Advance Directive?
If you’re relatively young and/or healthy, you might wonder why you’d bother with a Health Care Directive. Sadly, unforeseen and debilitating medical events can strike at any age. It can be difficult to think about, but it’s important to think about how you would want to be treated in the event that you’re unable to communicate your medical wishes.
Such predicaments could include (but are not limited to):
- Falling into a coma
- Being in an indefinite vegetative state
- Experiencing an unexpected, dire complication while under anesthesia
Should these or similar events occur, an MD Advance Directive will ensure that you’ll be treated according to your own wishes. This can also help alleviate the burden on your friends and family, by specifically outlining your desires.
3. How to Select Your Agent(s)
First and foremost, it’s important to choose someone that you trust deeply. Your agent must be willing and able to make potentially difficult decisions regarding your medical treatment.
Discuss your wants, values, fears, and preferences about your medical care with your prospective agent beforehand. The more your agent understands both yourself and your values, the more capable they will be of making decisions that you would have made.
Of course, this is a very personal choice. Make sure the person you choose understands what you’re asking and is willing to accept the responsibility.
Who can you select as your agent?
As specified in MD Health-Gen Code § 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 health care 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 MD Health-Gen Code § 5-602.
However, that former spouse may still remain as your agent if you are medically capable to make 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 (MD Health-Gen Code § 5-603).
4. Decision-Making Power of Your Agent
What Health Care Decisions Can Your Agent Make on Your Behalf?
Per MD Health-Gen Code § 5-605, your agent must follow any specific directions you include in your Advance Directive. While doing so, they must also consider:
- Your current diagnosis and prognosis, with and without treatment
- Any wishes you’ve expressed about providing, withholding, or withdrawing certain treatments
- Your moral and religious beliefs
- Your personal values
- Your past behavior, attitudes, and conduct regarding the treatment at hand
- Your past reactions to providing, withholding, or withdrawing similar treatments for another person
- Any concerns you’ve expressed about the effect on family or intimate friends if the treatment were provided, withheld, or withdrawn
Additionally, an Advance Directive can empower your agent to use their own best judgment in certain circumstances. If your wishes regarding certain treatments are unknown and not specified in your Health Care Directive, the agent must take your best interest into account.
As far as the agent’s decisions go, the benefit of treatment to you must outweigh the burdens of that treatment, taking into consideration:
- The effect of the treatment on your physical, emotional, and cognitive functions
- The degree of physical pain or discomfort caused to you by providing, withholding, or withdrawing treatment
- Your dignity
- The effects on your life expectancy
- The prognosis for your recovery
- The potential risks, side effects, and benefits of providing or withholding treatment
- Your religious beliefs and values, to the extent they help in determining your best interest
Therefore, taking all of the above into account, 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 Health Care Decisions is Your Agent Unable to Make on Your Behalf?
MD Health-Gen Code § 5-605 makes it clear 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 MD Health-Gen Code § 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.
5. What to Do if You Change Your Mind
How Long is Your Maryland Advance Directive Effective?
In Maryland, your Health Care Directive is valid and enforceable as soon as it has been executed and will last as long as you’re alive given that you do not change or cancel it.
How Do I Revoke My Maryland Advance Directive?
MD Health-Gen Code § 5-610 states that you may cancel your Advance Directive at any time by:
- Executing a signed and dated revocation, either electronically or in writing
- Destroying or defacing your Advance Directive (such as crossing out the document)
- Orally informing your doctor that you wish to revoke your Advance Directive
- Executing another Maryland Advance Directive form
6. How to Complete a Maryland Advance Directive
To complete a Maryland Advance Directive, MD Health-Gen Code § 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 years of age 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 certain 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
Maryland does not require that a Health Care Directive be notarized.
What to do with Your Maryland Advance Directive
Once you’ve completed a written Advance Directive in Maryland, you should give copies to your doctor, your attorney, any trusted family, friends or acquaintances, and of course the agent themselves.
You may also want to keep a copy on your person, such as in a wallet or purse, as well as with stashed away with other important personal documents. Remember to bring a copy with you if you are admitted to the hospital, even for minor surgery or an outpatient procedure.