Advance directives are somewhat self-correcting. If the patient is conscious and able to make informed decisions, the agent does not have authority under the instrument. Section 5-602(e) provides that (unless other provided in the document) “an advance directive shall become effective when the declarant’s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision.” The second physician is not required if the patient is unconscious or unable to communicate by any means. Section 5-602 provides that advance directives shall be made part of the medical record upon the attending physician learning of its existence. The statute provides suggested forms for advance directives. Moreover, the Attorney General provided an opinion as to the statute immediately upon its enactment. 79 Op. Att’y. Gen. 218 (May 3, 1994).
An advance directive may be revoked at any time by the declarant by a signed and dated writing, by physical cancellation or destruction, by an oral statement to a health care provider, or by the execution of a subsequent directive. Section 5-604.
To date, there is no judicial determination as to whether an advance directive imposes a duty on the health care provider. In Wright v. Johns Hopkins Health Systems, 353 Md. 568 (1999), the Court did not reach the issue of whether there is a cause of action available to an estate for a health care provider’s failure to comply with an advance directive. In Wright, the Court found that the facts failed to establish an effective advance directive.
