Advanced Health Care Directives in Maryland
The Maryland Health Care Decisions Act defines an “advanced directive” (popularly called “living wills”) very broadly. It can be a written or electronic document executed by the declarant; it can be a witnessed oral statement by the declarant, or; it can a wholly electronic document executed by the declarant and authorized in accordance with law.
By statute, the original health care directives were focused almost exclusively on physical impairments. More recently, the statute was broadened to specifically permit a health care directive addressing mental health services.
No specific form is required for an effective health care directive, although, the Maryland Health Care Directive Act provides a form. For Maryland residents, we think the Maryland statutory form is a good starting point for the construction of a health care directive. We see this as a “starting point” because there are certain deficiencies in the Maryland form that should be addressed if you want your health care decisions when you are not able to make them yourself directed by your wishes.
The Two Most Important Considerations
The two most important parts of the health care directive are 1) the selection of an agent and 2) the instructions or direction given to the agent. Both decisions relate directly to assuring that your wishes will be honored. The more definite that you can make known your wishes, the higher the likelihood that those wishes will be honored. Under Maryland law, the person designated as the surrogate “shall base those decisions on the wishes of the patient” so creating a clear directive is important. On the other hand, the agent ought to have sufficient flexibility to implement those wishes taking into account all of the relevant information at the future time when the decision is made. Thus, the instructions given to the agent should not be strictly binding but should rather allow the agent to deviate somewhat from the instructions if a different course would be in your best interest under the circumstances as present.
The Flaws In the Maryland Health Care Directives Form
Planning for how your future health care decisions will be made after you are no longer able to directly participate in those decision is as important as planning how your estate is to be distributed at your death. Unfortunately, the Maryland Advance Directive form does not do a great job of setting forth how you would want future health care decisions to be made if you are unable to make your own decisions.
The part of the Maryland health care directive form describing your treatment preferences generally addresses three circumstances: (1) if you are in a terminal condition and death is imminent, (2) if you are in a persistent vegetative state, and (3) if you are in “an end-stage condition” which is an incurable condition that will continue on this course until death and has already resulted in loss of capacity and complete physical dependency. The three categories of the situations addressed by the Maryland form hardly touch the vast number of potential situations that your agent may face in the future when you no longer can make your own decisions. This is the main shortcoming of the Maryland form: it follows a “diagnostic” format leaving the agent to extrapolate from one particular circumstance to the one facing the agent when he or she is called into action.
Another, more flexible approach is to set out scenarios of various degrees of incapacity and incorporate the medical options that may be available in those scenarios. The options should address whether treatment has a reasonable expectation of leaving you in the same or better circumstance. We recommend supplementing the form with this other approach in order to more fully inform the agent of how you would respond to a future medical decision necessity.
The other shortcoming of the Maryland form is it does not forthrightly address Alzheimer’s or other forms of dementia and spell out how aggressively you would want to treat that or a secondary illness if you were suffering from a form of dementia. Those decisions ought to be wed to the severity of the dementia. You may have a different preference if the dementia is impacting memory but has not necessarily reached a severe stage where it impacts almost every element of your individual autonomy and quality of life. We recommend supplementing the Maryland form with a form that addresses these issues.
“Your health care directive should give the best guidance possible to your agent. Critical health care decisions are extremely personal — taking into consideration religious, moral beliefs, and personal values. It is difficult for the agent to make a major health care decision for someone who cannot express their wishes. The agent will want to decide like you would if you were able, not base that decision on what the agent might decide for himself or herself,” says, Fred Franke, a principal of the Maryland estates and trusts law firm of Franke, Sessions & Beckett, LLC.
It is certainly not a “fun” exercise to address how you would want your medical decisions to be made if you were unable to make them yourself. This exercise forces you to examine medical situations that none of us wish to encounter but, as we age, becomes increasingly a possibility. Going through the exercise of making your preferences known on a written document is a useful tool to focus your thoughts as to how you would want to have these matters handled. It should be viewed, however, as one piece of the puzzle. You should also be communicating this information to your loved ones and most particularly to the person you are naming as an agent.
The Difference Between a Healthcare Directive and a MOLST Form
Often a health care directive is confused with a medical order for life-sustaining treatment (MOLST) form. Both, of course, address end of life decision-making. The MOLST, however, is a medical order that can only be completed with a doctor or other health care professional who discusses the issue with his/her patient and orders that emergency medical services will not be used to resuscitate you in the event of a cardiac or respiratory arrest. A MOLST form containing a do not resuscitate order (a “DNR order”) is something that must be signed by your doctor, nurse practitioner, or physician assistant. Unlike the health care directive, a DNR order must be in a particular standardized form. MOLST forms are used in health care facilities to document discussions with current life-sustaining treatment issues. It is not the same as the health care directive which is generally used long before you are in a health care facility. That being said, if you are entering a health care facility without a health care directive you should prepare one as soon as possible naming an agent and setting out your health care preferences
The Maryland estate and trust attorneys at Franke, Sessions and Beckett LLC understand that end of life health care is a deeply personal and emotional issue. For over 35 years, the law firm of Franke, Sessions & Beckett, LLC has concentrated on the law of estates and trusts – including guiding clients through their options for advanced health care planning. Anyone who has been in a position of making critical heath care decisions on behalf of a loved one understands the importance of knowing how that person would wish decisions to be made. Our experienced Maryland estate planning attorneys have the experience, training, and knowledge to guide you through the process to ensure that your goals are met. Call 410-263-4876 to get in touch with our Annapolis office.