Surrogate Health Care Decision Making and Advance Health Care Directives

If you become incapacitated and need medical treatment, what kind of care will you receive, and who is going to make decisions for you? The answers to these crucially important questions include surrogate health care decision making and advance health care directives.

Surrogate Health Care Decision Making

Maryland Law on Who Makes Medical Decisions if You are Not Able To

If you have not designated a health care agent, and two physicians certify that you lack “legal capacity,” Maryland law states who can make health care decisions for you. You lack "legal capacity" if you are incapable of making informed decisions about your medical treatment. In that event, under Maryland law your closest relative(s) — including, in descending order of priority: your spouse; adult children; parents; and adult siblings — can act as “surrogate health care decision makers” and can make health care decisions for you.

My Family Will Know What to Do — Why Do I Need an Advance Health Care Directive?

Some people do not execute advance health care directives, believing that, in the event of their becoming seriously ill and incapacitated, their family “will know what to do.”

But there are risks of leaving decisions to family members in that way. First, your next-of-kin may in fact not know what to do. They may inadvertently choose a course of treatment that is completely contrary to your preferences. Also, it can be a terrible burden on family members to make decisions about your medical care, particularly with regards to end of life medical care, without knowing what you would want for yourself.

Second, your next-of-kin may not agree about your medical care. Under Maryland law, surrogates of equal rank have equal authority. So, for example, say you are unmarried, have two adult children, and are incapacitated. Under Maryland law, each adult child has equal authority to make health care decisions for a parent. And your children may not agree on, say, community care versus nursing home placement, or, in the event of life-threatening illness, aggressive medical intervention versus hospice care.

And if your children disagree about what kind of health care you should receive, then a hospital, nursing home or other provider may not be sure how to proceed with regards to your medical treatment — and may become afraid of liability and hesitant to work with you and your family. In that event, the health care provider may ask your family to seek mediation, or petition the court to appoint a guardian.

So, under Maryland law, yes, you can leave it up to your family to make medical decisions for you in the event that you become incapacitated. But there are risks with doing that.

Advance Health Care Directives

Another approach, which may help avoid these risks, is to execute advance health care directives. Advance health care directives include durable health care powers of attorney; living wills; and medical orders for life sustaining treatment (“MOLST”).

Durable Health Care Powers of Attorney

A durable health care power of attorney is a writing in which you name a health care agent, somebody to make decisions about your medical treatment if you are incapacitated.

“Durable” means that the power of attorney remains in effect, even if you subsequently become incapacitated.

Who Should Your Health Care Agent Be?

When deciding whom to appoint as health care agent, important factors to consider are the potential agent’s willingness to honor your health care preferences and his or her ability to effectively advocate for you to your physician, hospital, and other providers.

Appointing co-agents generally is not advised, because, in the event of conflict, the agents may end up in court in a guardianship proceeding. Generally, a preferred approach is to appoint one person to be your agent. And then perhaps appoint a successor in the event that your agent is unable to serve or continue serving.

If co-agents are nevertheless desired, then the durable health care power of attorney might direct that the co-agents’ powers are “joint and severally,” which means that, if necessary, each agent has the authority to act alone. Adding that “joint and severally” language to your power of attorney may be particularly helpful if you face a medical emergency and one of your co-agents is not available, because, for example, he or she is ill, or temporarily out of the area on vacation or business.

The durable health care power of attorney should include a clause that says when it becomes effective. It can become effective immediately, upon signing. Alternatively it can become effective only in the event of your subsequent incapacity, a “springing” power of attorney. A springing power of attorney should say how your incapacity is to be determined. Typically the document directs that your incapacity is conclusively established by a certificate from your treating physician.

Living wills, and Medical Orders for Life Sustaining Treatment (MOLST)

Living Wills

A second kind of advance health care directive is a living will. A living will is a writing in which you state your treatment preferences in the event of certain, specific health care contingencies, particularly with regards to end-of-life care.

Living wills follow an “if, then” model:

  • If I lack “legal capacity,” i.e., am incapable of making informed decisions about my medical treatment, and I have a life-threatening illness (or some other specified medical condition);
  • Then:
    • I want aggressive medical intervention; or, alternatively
    • I do NOT want “life-sustaining procedures,” but, rather, I want more palliative, hospice-type care.

Examples of life-sustaining procedures include: artificially administered hydration and nutrition; mechanical ventilation; dialysis; surgery; chemotherapy; antibiotics; and cardiopulmonary resuscitation (CPR).

Under Maryland law, pursuant to a living will, the decision to forego life sustaining procedures is carried out if two physicians certify to a reasonable degree of medical certainty that you have one of the following medical conditions: a persistent vegetative state (e.g., an irreversible coma); a terminal condition (for example, inoperable cancer); or an “end-stage condition.”

Maryland law defines “end-stage condition” as being:

  • an advanced, progressive, and irreversible condition;
  • caused by injury, disease, or illness;
  • that has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and
  • for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.

Maryland’s Attorney General has issued an Opinion stating that severe Alzheimer’s Disease and other advanced dementia is consistent with Maryland’s statutory definition of end-stage condition.

So, if you are in a persistent vegetative state, are terminally ill, or have an end-stage condition, then your living will directs what kind of medical treatment you receive: either aggressive medical intervention, or, alternatively, hospice care, whichever you direct.

Medical Orders for Life Sustaining Treatment (MOLST)

A more recent development in Maryland law on advance directives for end-of-life care is medical orders for life sustaining treatment (MOLST).

MOLST addresses many of the issues that you might include in your living will. The MOLST form lists various treatment options regarding end-of-life care, including cardio pulmonary resuscitation (CPR), ventilation, antibiotics, artificial feeding and hydration, and dialysis.

But, differently than a living will, MOLST is completed and signed by your physician or nurse practitioner, in consultation with you, or, if you lack legal capacity, your health care agent.

So MOLST essentially reduces your living will to the form of a medical order that emergency medical services (EMS (ambulance personnel)), hospital emergency staff, and other health care providers must honor.

Maryland law requires certain medical facilities — including hospitals, assisted living facilities, nursing homes, and hospices — to offer and to regularly update patients’ MOLST forms.

And the MOLST document follows the patient. By law, a medical facility, upon transfer of a patient to a new health care facility, must have the MOLST accompany the patient to the new facility. So, for example, if a nursing home resident is emergently transferred to a hospital, the nursing home must hand a copy to the MOLST to the ambulance personnel and/or electronically transmit the MOLST to the hospital emergency room.

Having your physician or nurse practitioner complete and sign a MOLST may be an important way to better ensure that your health care providers honor your preferences regarding end-of-life medical care.

For More Information or Help with Maryland Advance Health Care Directives and Surrogate Health Care Decision Making

Elder law attorneys are great resources for information and updates in the law about advance health care directives.

The Law Office of Henry Nash practices elder law. If you have any questions or concerns about surrogate health care decision making, durable health care powers of attorney, living wills, medical orders for life sustaining treatment (MOLST), and related, and would like to discuss with an experienced elder law attorney, please feel free to contact us.

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