Whether or not you have any documents prepared, you have an incapacity estate plan for health-care issues in place courtesy of the State of Maryland. The question is: Is Maryland’s default plan the one you actually want?
Maryland’s Default Decision-Making System
Maryland law establishes a priority list of people who can make medical decisions on your behalf if physicians determine you cannot make informed choices yourself. This “surrogate decision-making” system automatically kicks in when you’re incapacitated and haven’t designated your own healthcare agent.
The Default Priority Order
Under Maryland law, if you haven’t executed an advance directive, the following people can make healthcare decisions for you, in this order:
- Court-appointed guardian (if one exists)
- Spouse or registered domestic partner
- Adult child (if multiple adult children, majority rules)
- Parent
- Adult sibling (if multiple siblings, majority rules)
- A friend or other relative who has maintained regular contact and is familiar with your values
The Problem with Default Rules
While Maryland’s surrogate system ensures someone can make decisions for you, it may not be the right person—or the right decision.
Family Conflict
What happens when:
- You’re estranged from your spouse but not yet divorced?
- Your adult children disagree about your care?
- Your parents and siblings have different views on treatment?
- The person who knows you best isn’t on the list at all?
Values Not Reflected
Your surrogate may have to make life-and-death decisions with no guidance about your values, beliefs, or wishes. Even well-meaning family members may:
- Project their own preferences onto you
- Be unable to make difficult decisions
- Disagree about what you would have wanted
- Not know about specific treatments you would or wouldn’t want
The Unmarried and Those Without Family
If you’re not married and don’t have close family, the default system becomes even more problematic:
- Who will make decisions for you?
- Will they know your wishes?
- Will healthcare providers accept their authority?
Taking Control: The Advance Directive
An advance directive allows you to take control of these crucial decisions before incapacity strikes. Maryland’s advance directive form combines two important documents:
The Healthcare Agent Designation
This portion lets you name the person (or persons) you want making healthcare decisions if you cannot. You can:
- Choose anyone you trust—not just family
- Name backup agents in case your first choice is unavailable
- Give specific instructions about what decisions they can make
- Require them to consult with specific people
The Living Will
This portion lets you express your wishes directly, including:
- Whether you want life-sustaining treatment in terminal situations
- Your preferences about artificial nutrition and hydration
- Pain management priorities
- Organ and tissue donation wishes
- End-of-life care preferences
Why Both Parts Matter
Having both a healthcare agent AND specific instructions provides the best protection:
The Agent can make real-time decisions based on actual medical circumstances—situations you can’t anticipate in advance.
The Instructions guide your agent when making difficult decisions and provide backup if no agent is available.
Common Misconceptions
”My family knows what I want”
Maybe. But do all family members agree? Can they articulate your wishes to medical providers? Are they willing to make difficult decisions? Written instructions remove doubt and reduce family conflict.
”I’m too young to worry about this”
Incapacity can happen at any age—accidents, sudden illness, mental health crises. Young adults especially need advance directives since the default rules may give decision-making to parents rather than partners or friends who know them better.
”My spouse will automatically decide”
Your spouse may be your default surrogate, but what if your spouse is the one who’s also injured? Or what if you’re separated? Or what if your spouse is too distraught to make decisions? Having a designated agent—and backup agents—provides certainty.
”The doctors will know what to do”
Doctors provide medical information and options, but the decisions about what’s right for you must come from somewhere. Without your guidance, doctors must rely on surrogates who may not know your values.
Getting Your Advance Directive Done
Creating an advance directive in Maryland is relatively straightforward:
- Obtain the form - Maryland has an approved statutory form
- Consider your values - Think about what matters most to you in medical care
- Choose your agents - Select primary and backup healthcare agents
- Complete the form - Fill in your choices and instructions
- Sign and witness - The form must be signed and witnessed (and/or notarized)
- Distribute copies - Give copies to your agents, doctors, and hospital
Making It Part of Your Larger Plan
Your advance directive should work alongside your other estate planning documents:
- Financial power of attorney for non-healthcare decisions
- Will or trust for asset distribution
- HIPAA authorization for medical information access
- Emergency contact and information sheet
We Can Help
At Leffler, Bayoumi & Oliver, we help clients create comprehensive incapacity plans that reflect their actual values and wishes—not just Maryland’s default rules. We’ll help you think through the important questions and create documents that give you control over your healthcare decisions.
Don’t leave your healthcare decisions to chance. Contact our office to schedule a consultation and create an advance directive that truly represents your wishes.
Need Legal Assistance?
If you have questions about this topic or need legal representation, our experienced attorneys are here to help. We work with clients throughout Maryland to provide practical guidance and effective advocacy.
Contact us to discuss your situation and learn how we can assist you.