Your Advance Directive and Appointment of Health Care Agent – An Important Part Of Your Estate Plan

by Pessin Katz Law, P.A.

An Advance Directive and Appointment of Healthcare Agent, or the Advance Directive for short, informs your health care providers as to your wishes regarding your care if you are unable to communicate your own decisions.  In the event you are unable to communicate, the Advance Directive also names a person or multiple people to communicate your health care decisions for you and act on your behalf.  Unlike a Personal Financial Power of Attorney (previously known as a “General Power of Attorney”), your Health Care Agent’s authority extends to decisions about your health care, not your business or financial matters.

Your Health Care Agent should be someone you trust to enforce your wishes.  Your Health Care Agent does not have to have any specialized knowledge about medicine or health care.  You may name anyone to serve as your Health Care Agent who is 18 years of age or older except for an employee, owner or operator of a health care facility at which you are receiving care. 

Maryland recently became a state which allows same-sex marriages to be performed within the state and also recognizes same-sex marriages performed legally in other states.  Prior to that, Maryland recognized Domestic Partnerships which accorded Domestic Partners the same rights to act in health care matters and receive related information as if those partners were spouses.  With the laws of the states differing significantly as to the rights of same-sex couples it is important for same-sex couples to have a valid Health Care Directive and carry it with them when they travel to non-friendly states.  Without having a Health Care Directive it is possible that same-sex couples (particularly unmarried same-sex couples or couples traveling) could find themselves in situations where they cannot make health care decisions or receive information on each other’s behalf.  Unmarried opposite sex couples could find themselves in this position as well as, absent marriage, or an Advance Directive (or both) there is no legal decision-making authority available to your partner. 

Consequently, individuals without Health Care Directives should consider consulting with an attorney to receive further guidance on this matter.

An Advance Directive requires no particular form.  However, it must be properly signed and witnessed as required by law. The document is usually effective upon its signature and continues in force until it is revoked by you.  Very often, an Advance Directive signed in Maryland will be honored by another state, but it is prudent to review and revise the document should you relocate to another state.

Your Advance Directive ought to address such issues as the use of life support, “do not resuscitate” (DNR) orders; “feeding tubes”; “comfort care”, and medication to alleviate pain even though that use may shorten your life. All of these matters should be discussed with those close to you as well as the person you name as your Health Care Agent. 

An Advance Directive is not the same as a “Patient’s Plan of Care”, “Instructions on Current Life Sustaining Treatment Options”, or “Medical Orders for Life Sustaining Treatment (MOLST)”, all of which are medical records which you do not sign but which are signed by your doctor or other authorized health professional to be used by medical personnel to quickly identify medical treatment to be given to you based on your wishes.  Your Advance Directive can authorize your Health Care Agent to complete these forms on your behalf should you be unable to indicate your wishes to your health care provider.  These forms do not invalidate your Health Care Directive or make having a Health Care Directive unnecessary, rather they all work together to make your wishes as clear as possible when you are unable to do so.

Health care decisions are not ones to be entered into lightly.  Likewise, the documents used to express your wishes concerning those decisions ought to be as comprehensive and clear as possible. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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