Very few questions affect us more than our choices about our own health care.  We need to know what our rights are, and how we can be sure that health care decisions are made the way we want.  Maryland has very detailed laws about health care decisions - what we have the right to decide, and how we can be sure our wishes are carried out even if we are too ill to make and communicate choices. Written instructions about what health care we want or do not want after we can no longer choose are often called a "Living Will."  In Maryland, the law calls it an "Advance Directive."  The two terms mean the same thing.

Writing down your choices about your future health care -- at a time when you can still communicate those choices -- will help make sure your wishes are carried out. For instance, an advance directive is important when someone is in a coma, on life support, and unlikely to ever recover. Writing down your choices ahead of time can spare family members from heartbreaking choices about whether to keep you on life support. Advance directives can also state what types of treatments you want in different situations. For instance, you can choose whether you want to receive pain-management drugs that may ease your suffering, but shorten your life span.

Types of Advance Directives

Written

  • Patient must make the Advance Directive voluntarily
  • Patient must be competent to make it
  • Patient must date and sign the Advance Directive (or, if the patient can’t sign his or her own name, someone else must sign at the patient's direction and in the patient’s presence)
  • Two witnesses must sign
  • Witnesses can be any competent person. However:
    • If a "health care agent" is appointed in the document, that person cannot be a witness.
    • At least one witness must be someone who is not knowingly entitled to any portion of the person's estate or knowingly entitled to any financial benefit from the death of the person.

Oral

  • Patient must give the oral Advance Directive voluntarily
  • Patient must be competent to give the oral statement intending it to be an Advance Directive
  • The oral Advance Directive must be made in presence of the attending physician and at least one witness
  • The oral Advance Directive must be documented in the person's medical record and was dated and signed by the physician and the witness

Healthcare Agent

An advance directive may name another person to act as a “healthcare agent” to carry out the patient’s wishes. This person is usually a family member. The law describes the healthcare agent's duty. Generally, the agent must follow any specific terms the patient included in the advance directive. The agent must follow the wishes of the patient, while also considering:

  • the current diagnosis and prognosis with and without treatment
  • the wishes the patient has expressed about providing, withholding, or withdrawing the specific treatment or similar treatments
  • the patient's religious and moral beliefs and personal values
  • the patient's behavior, attitudes, and past conduct with respect to the treatment at issue and medical treatment generally
  • the patient's past reactions to the providing, withholding, or withdrawing similar treatment for another person
  • the patient's expressed concerns about the effect on family or intimate friends if treatment were provided, withheld, or withdrawn

The healthcare agent's decision may NOT be based on any preexisting, long-term mental or physical disability OR the patient's economic disadvantage.

Health-care providers must inform the patient as much as possible of the proposed treatment and that someone is authorized to make the decision.

The agent may NOT authorize sterilization or treatment for a mental disorder.

An Advance Directive can give the healthcare agent the power to use his or her own best judgment, in certain situations. If the wishes of the patient are unknown, the agent must base decisions on the best interest of the patient. This means that the benefits to the patient of treatment outweigh the burdens of that treatment to the patient, taking into consideration:

  • the effect of treatment on the patient's physical, emotional, and cognitive functions
  • the degree of physical pain or discomfort caused to the patient by providing, withholding, or withdrawing treatment
  • the patient's dignity, the degree to which the patient may be humiliated or dependent because of the treatment
  • the effects on patient's life expectancy
  • the prognosis for recovery, with and without treatment
  • the risks, side effects, and benefits of the treatment
  • the religious beliefs and basic values of the patient, to the extent they help in determining her best interest.

When does the Advance Directive go into effect?

Unless a written living will or advance directive says otherwise, it takes effect when the attending physician and another doctor certify in writing that the patient is not able to make an informed decision.

The two doctors must base this certification on personal examination of patient.

One of the physicians must have examined the patient within two hours of making the certification.

If the patient is unconscious or unable to communicate by any means, a second physician's certification is unnecessary.

For more help with Advance Directives, and a sample form, go to: http://www.oag.state.md.us/Healthpol/adirective.pdf

Source: 

Edited by Timothy Canney, Esq., Associate, JDKatz, P.C.

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