Advance Directives

 

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What is an Advance Directive?

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. 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 example, it can tell your doctors how aggressively you want them to treat you and to what extent you would want to be kept alive. It can tell people at what point you would prefer a natural death instead of being kept alive by ventilators, feeding tubes, or other mechanical means. Or, it can state you want all life-sustaining treatments even if they are unpleasant or you may not fully recover.

Read the law: Md. Code, Health General § 5-602

 

Alternatives to Guardianship Part 2: Advance Directives from the Maryland Courts

 

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 in the patient's physical or electronic presence.
  • 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.
  • Electronic Advance Directives are enforceable
  • Advance Directive guide and fillable form from the Maryland Attorney General's Office

Read the Law: Md. Code, Health General § 5-602(c)

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

Read the Law: Md. Code, Health General § 5-602(d)

 

Health Care Agent (Medical Power of Attorney)

An Advance Directive may name another person to act as a “Health Care Agent” to carry out the patient’s wishes. The Health Care Agent can also be named in a separate document called a Health Care Power of Attorney.

Your Health Care Agent can make health care decisions on your behalf if you are not capable of making these decisions on your own. Doctors and other health care professionals can ask your Health Care Agent to make health care decisions on your behalf. This person is usually a family member. The law describes the Health Care 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 Health Care Agent's decision may NOT be based on any pre-existing, 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.

An Advance Directive can give the Health Care 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

Without a Health Care Agent, family (or close friends) may still be able to make certain health care decisions for you. But by naming the Health Care Agent, you can decide which relative or friend you prefer to make those decisions for you when you cannot do so yourself. If you choose to name a Health Care Agent, you must let them know you have done so and discuss with them what you want. You may or may not allow your Health Care Agent to make end-of-life decisions, but, if you do, they may use your Advance Directive as guidance in determining what actions to take, if any.

 

Medical Orders for Life-Sustaining Treatment (MOLST) 

A MOLST form is a written record of your medical orders – your specific decisions to receive (or not receive) certain treatments, signed by your doctor. A MOLST is used to give directions to all medical professionals about what types of treatment you should (or should not) receive, regardless of whether there are emergency circumstances. While similar to an Advance Directive, there are some important differences. For example, a MOLST containing a Do Not Resuscitate Order (“DNR Order”) would most likely be obeyed by emergency responders; an Advance Directive containing a DNR Order would likely not be obeyed. 

See the Advance Directive Frequently Asked Questions for more information.

 

Decision-Making for a Disabled Person from the Maryland Courts

Decision-Making Standards

Ethical Considerations

Medical Decisions

 

Source
Edited by Timothy Canney, Esq., Associate, JDKatz, P.C.
Source URL: https://www.peoples-law.org/advance-directives

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