General Counsel: Health Powers of Attorney

Your Rights under Maryland Law to make Decisions Regarding your Health Care

According to Maryland and Federal law, competent adults have the right to decide whether to accept, reject, or discontinue medical treatment for themselves. This includes decisions about life-sustaining treatments, such as breathing machines and feeding tubes.

Sometimes it becomes impossible for individuals to communicate their wishes regarding their health care due to conditions such as coma resulting from accident or illness. In situations such as these, others must make the health care decisions for the patient. Maryland law gives you the right to make many health care decisions in advance so that your wishes can be honored in the event you cannot make your wishes known yourself. One way to do this is by making an advance directive.

What Is An Advance Directive?

An advance directive is a legal means of stating your wishes regarding your medical treatment or naming someone to make medical decisions for you if you are unable to do so.

What Types of Advance Directives Are Available?

  1. Written Advance Directive (document):
    Living Will
    Specifies what medical treatment you would or would not want in the event you are in a terminal condition or a persistent vegetative state.
    Appointment of a Health Care Agent
    Gives authority to another person to make health care decisions for you;
    You may specify whether the appointment takes effect immediately or at the time you are unable to make your own decisions;
    The appointed Health Care Agent has broader power to execute your wishes than can be provided under a Living Will;
    You will want to select your agent carefully to make sure your agent knows and will follow your wishes.
    Health Care Instructions
    Another form of written advance directive that can be used alone or together with the appointment of a Health Care Agent;
    Allows you to specify what treatment you want or do not want in the event you are in a terminal condition, persistent vegetative state or end-stage condition;
    Allows you to express other health care decisions, such as a Do Not Resuscitate (DNR) order.
  2. Oral Advance Directive
    You may make an oral statement to your physician in the presence of a witness, providing instructions or appointing a Health Care Agent. This statement regarding your wishes must be recorded in your medical record by your physician and signed and dated by the physician and witness.
  3. Can Anyone Be My Agent?

    Your agent may be any competent adult except an employee, owner or operator of the health care facility where you are being treated, unless the agent would also qualify as a surrogate.

    What Happens If I Do Not Make An Advance Directive?

    Maryland law allows a surrogate to make medical decisions for you if you have not named a health care agent and are no longer able to decide treatment issues yourself. A surrogate would be designated in the following order:

    • a. your guardian, if the court has appointed one;
    • b. your spouse;
    • c. your adult children;
    • d. your parents;
    • e. adult brothers and sisters;
    • f. a friend or relative who specifies in writing that he or she is a close friend and is familiar with your wishes.

    Do I Have To Have An Advance Directive?

    No, you do not. However, an advance directive is a good way to make your wishes regarding your medical treatment known and to have your wishes honored.

    Will My Wishes Be Honored?

    In most cases there will be no problem in carrying out your wishes. However, there may be some special circumstances. Should disagreement arise between equal ranking surrogates regarding your medical treatment, your physician may consult the hospital's Patient Care Advisory Committee.

    If your physician believes that an instruction to withhold or withdraw life-sustaining procedures from a patient is inconsistent with generally accepted standards of patient care, the physician may consult the hospital's Patient Care Advisory Committee or file a petition in court.

    A physician need not provide treatment that the physician believes to be medically ineffective or ethically inappropriate. In cases where the patient, agent or surrogate instruct that health care be given that is deemed, by the physician, to be ineffective or ethically inappropriate, the physician must inform the patient, agent or surrogate that they may request a transfer to another physician and assist, if desired, in effecting the transfer. Pending the transfer, the physician must comply with the request for treatment if failure to comply would result in the death of a patient.

    Do I Have To Have A Lawyer To Make An Advance Directive?

    No, you do not. However, if you have concerns about the legal effect of making an advance directive, you should consult a lawyer.

    How Do I Get Started In Making My Advance Directive?

    You should talk with your physician and your family or others close to you about your feelings regarding medical treatment and health care. You may also want to speak with your clergy or lawyer. You may also consult your nurse about having a trained hospital representative speak with you about advance directives.

    What Should I Do After I Have Completed An Advance Directive?

    Tell your health care provider and close family or friends about your decisions and give them a copy of any advance directive.

    Advance Directive Forms

    The following contain advance directive forms (Living Will, Appointment of Health Care Agent and Health Care Instructions). These optional forms are included for your convenience. However, if these forms do not suit your needs, you may prepare documents worded as you choose provided the documents are signed and witnessed in accordance with Maryland law.

    TERMS AND DEFINITIONS

    Advance Directive: A document in which a person either states choices for medical treatment or designates who should make treatment choices if the person should lose decision-making capacity. The term also includes oral statements made by the patient.

    Artificial Nutrition and Hydration: A method of delivering food and water when a patient is unable to eat or drink. The patient may be fed through a tube inserted directly into the stomach, a tube put through the nose and throat into the stomach, or an intravenous tube.

    Cardiopulmonary Resuscitation (CPR): A medical procedure, often involving external chest compression, administration of drugs, electric shock, and putting a tube into the lungs to restore heartbeat and respirations at the time of a cardiopulmonary arrest.

    Decision-Making Capacity: The ability to make choices that reflect an understanding and appreciation of the nature and consequences of one's actions.

    Do Not Resuscitate (DNR): A medical order to refrain from cardiopulmonary resuscitation if a patient's heart stops beating or the patient stops breathing.

    End Stage Condition: An advanced, progressive, irreversible condition caused by injury, disease or illness (a) that has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and (b) for which, to a reasonable degree of medical certainty treatment of the irreversible condition would be medically ineffective.

    Hospice: A program that provides care for the terminally ill in the form of pain relief, counseling, and custodial care, either at home or in a facility.

    Life-Sustaining Treatment: Treatment that, to a reasonable degree of medical certainty; will neither prevent nor reduce the deterioration of the health of an individual nor prevent the impending death of an individual.

    Medically Ineffective Treatment: Treatment that, to a reasonable degree of medical certainty, will neither prevent nor reduce the deterioration of the health of an individual nor prevent the impending death of an individual.

    Palliative Care: Medical interventions intended to alleviate suffering, discomfort, and dysfunction but not to cure (such as pain medication or treatment of an annoying infection).

    Persistent Vegetative State: As defined by the American Academy of Neurology "a form of eyes-open permanent unconsciousness in which the patient has periods of wakefulness and physiologic sleep/wake cycles but at no time is aware of himself or his environment."

    Terminal Condition: In most states, a status that is incurable or irreversible and in which death will occur within a short time. There is no precise, universally accepted definition of "a short time," but in general, it is considered to be less than one year.

    Ventilator: A machine that moves air into the lungs for a patient who is unable to breathe naturally. Sometimes referred to as a breathing machine or respirator.