Section 5-602 provides for written and, in certain circumstances, oral directives. A written directive must be dated, signed by “or at the express direction” of the individual, and subscribed by two witnesses. The statute provides that the health care agent may not serve as a witness. Additionally, at least one of the witnesses must be someone who is not knowingly entitled to a portion of the declarant’s estate or who would otherwise financially benefit by reason of the death of the declarant. The statute explicitly permits an employee of the health care facility and/or physician caring for the declarant to act as a witness if they act in good faith.
The declarant may choose “any competent individual” to serve as agent to make health care decisions for the individual under the circumstances stated in the directive. Neither an owner, operator or employee of the health care facility where the declarant is receiving care may serve as an agent unless that employee, etc. would be otherwise authorized to act as a surrogate under the default provisions of § 5-605 (generally family members). An oral directive may be made either regarding the authorization or withdrawal of procedure approach to health care delivery and/or to appoint an agent to make those decisions. An oral directive must be made in the presence of the attending physician and one witness “and documented as part of the individual’s medical record.”
