Advance Directives Frequently Asked Questions
This article answers common questions about Advance Directives, Health Care Agents and Medical Orders for Life-Sustaining Treatment forms. For more information on these topics please see the article on Advance Directives.
- Why should I sign an Advance Directive?
- Where can I get an Advance Directive form?
- How can I make sure my doctors and others will follow my Advance Medical Directive?
- If I have completed an Advance Directive (or Living Will) in another state, is it also valid in Maryland?
- Is it possible to complete an Advance Directive without witnesses?
- Where should I keep my completed paper Advance Directive?
- Do I need to hire an attorney to complete an Advance Directive?
- What is a MOLST and how does it differ from a Living Will?
- If I do not want CPR, will a Advance Directive ensure that CPR is not performed on me?
- I already completed a Advance Directive containing my treatment wishes. Do I also need a MOLST form?
- When does the Advance Directive go into effect?
- Where can I get more information and copies of Advance Medical Directive forms and MOLST forms?
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Why should I sign an Advance Directive?
Often an Advance Directive is completed at the same time as a Health Care Power of Attorney. The Advance Directive is sometimes called a "Living Will." A Health Care Power of Attorney allows you to appoint the person of your choice to make your medical decisions if you are unable to do so. The "Living Will" portion of the Advance Directive is a written statement by you of what medical care you want in the future. Your doctor and others may use it when you are unable to say what you want. A Living Will is a good way to let your doctors and family know what you want if you cannot tell them.
Where can I get an Advance Directive form?
There are many different sources to obtain the forms needed to complete an Advance Directive. A free resource that includes forms is Maryland Advance Directive: Planning for Future Health Care Decisions published by the Maryland Attorney General’s Office. You may find others written by medical, religious, and other groups. Whatever form you use, discuss the medical treatment choices with your doctor. You may also wish to speak with a lawyer about how to avoid any future confusion by making your choices clear and understandable.
How can I make sure my doctors and others will follow my Advance Medical Directive?
To be followed, an Advance Directive must be legally valid. There are only a few requirements for a legally valid Advance Directive in Maryland, but it is important to meet them. An Advance Medical Directive must be:
- In writing
- Signed by you
- Dated
- Witnessed
There are specific rules about who can be a witness to the document. For example, you need two adults to witness your signing, but the person who witnesses cannot be a person you name to make decisions for you (your Health Care Agent). The witnesses must be in your physical presence or electronic presence. One of your witnesses (but not both) may benefit financially from your death, such as a husband or child who will inherit your property after your death. You do not need a notary, but if you have a notary for signing another document, that person can be one of your two witnesses. Consult a lawyer if you have any questions about meeting these legal requirements.
An Advance Directive can also be legally valid if given orally. See the Advance Directives article for more information.
If I have completed an Advance Directive (or Living Will) in another state, is it also valid in Maryland?
If you have completed an Advance Directive in another state in accordance with that state’s legal requirements, your out-of-state Advance Directive is also valid in Maryland. However, it is always better to have a Maryland-specific document if you live in Maryland. Local doctors and hospital staff are familiar with Maryland-specific documents and are more likely to follow them without having to take the additional steps of determining whether your out of state directive was a properly executed and whether it is a valid document that can be applied in Maryland.
Is it possible to complete an Advance Directive without witnesses?
Maryland established an Advance Directives Program to support creation of, and accessibility to, electronic advance directives. Under Maryland law, the state-designated health information exchange can accept unwitnessed electronic advance directives if the directive:
- Is dated; and
- Is stored in an electronic file by an electronic advance directives service recognized by the Maryland Health Care Commission (MHHC).
An unwitnessed electronic advance directive can be in the form of a video record or file that states the individual’s wishes regarding health care or to appoint a health care agent. An important advantage of an electronic Advance Medical Directive is that it can be stored and accessed online.
To be certain the electronic Advance Medical Directive will be legally valid, use a website that has been approved by the Maryland Health Care Commission. The MHCC lists approved vendors on their Electronic Advance Directives page. Consult a lawyer if you have any additional questions.
Read the law: Md. Code, Health – General § 5-602
State Recognition of an electronic advance directives service is available to vendors that want to establish an interface with the State-Designated Health Information Exchange (HIE), the Chesapeake Regional Information System for our Patients (CRISP). Maryland regulations outline procedures for criteria for state recognition.
Read the Regulations: Code of Md. Regulations, 10.25.19
Where should I keep my completed paper Advance Directive?
Keep your completed Advance Directive in a place where it may easily be found. Give a copy to your Health Care Agent or Agents and to your physician. It is also a good idea to carry a wallet card saying you have completed an Advance Directive and that includes your Health Care Agent’s contact information. In some counties, the local hospital may accept a copy to be kept on file in case of an emergency.
Do I need to hire an attorney to complete an Advance Directive?
No, you do not need to hire an attorney to complete an Advance Directive. However, an attorney can be helpful in answering any questions you may have and to ensure your Advance Directive is legally valid.
What is a MOLST and how does it differ from a Living Will?
A Medical Orders for Life-Sustaining Treatment (MOLST) form contains medical orders issued by your physician, nurse practitioner, or physician assistant to carry out your wishes about life-sustaining treatments, such as CPR, ventilators, and feeding tubes. A MOLST form has medical orders that must be followed at all times. This means that a MOLST form will be followed even in unexpected emergency situations. In contrast, an Advance Directive (Living Will) contains your treatment preferences for end of life care. When the time comes for end of life care to be provided to you, your medical care providers would sign a MOLST form containing the actual medical orders needed to carry out the treatment preferences you stated in your Advance Directive. A free copy of the MOLST form can be found at the Maryland MOLST website.
If I do not want CPR, will a Advance Directive ensure that CPR is not performed on me?
No. If you do not want CPR, you need to ask your health care provider to complete a MOLST form. An Advance Directive will not stop emergency medical personnel from performing CPR. When you or your loved ones call 911, emergency medical personnel will require a completed MOLST form, a Medic Alert bracelet, or other approved bracelet containing the MOLST form’s DNR order to prevent them from starting CPR. If you do not have an approved bracelet, you or your loved ones are expected to retrieve the MOLST form before the ambulance arrives. Otherwise, emergency medical personnel may look for your MOLST form in a few places: on your refrigerator door, by your bedside, and behind your bedroom door.
I already completed a Advance Directive containing my treatment wishes. Do I also need a MOLST form?
An Advance Directive and a MOLST form are used for two very different reasons, so you may choose to have both. An Advance Directive is a more general statement that you will either accept or decline life sustaining treatment in the event you become incapacitated and cannot speak for yourself. On the other hand, a MOLST form contains medical orders about specific life-sustaining treatments. You may choose to consent to a MOLST form if you have any current medical conditions that may require specific life-sustaining medical treatments. For example, a person who currently is unable to properly swallow solid food may have previously signed an Advance Directive stating generally that they do not wish to have future life sustaining treatment should they become terminally ill, but they may also consent to a MOLST form ordering that they now receive a feeding tube because they are not yet terminally ill. Each individual situation will vary. Consult your medical care provider and an attorney to make sure your wishes are properly documented so that they are carried out in accordance with your wishes.
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.
Where can I get more information and copies of Advance Medical Directive forms and MOLST forms?
Further information about Advance Directives is available at the Maryland Attorney General’s website. Further information about the MOLST form is available at the Maryland MOLST website.
This article was adapted from the Life and Health Planning Handbook created by the Life and Health Planning Committee of the Maryland Attorney General's Covid-19 Access to Justice Taskforce.
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