WHY DO I NEED AN ADVANCE DIRECTIVE?
What is an "advance directive" and why do I need one? An advance directive includes two major components -- an appointment of health care agent, in which you direct a person to make decisions for you if you cannot; and what is sometimes called a "living will," a legal document that specifies your health care wishes when you are no longer able to do so. The key is to prepare this in advance, before you have health issues, and while you are still competent to make these decisions. An advance directive covers all health care issues, physical and mental. It could cover simple things like routine health care decisions that you can no longer make, or more complicated issues including whether you wish to have life support, cardio-vascular resuscitation, tube feeding, pain medications, or surgery.
In order to make a valid advance directive, it must be signed in the presence of two witnesses, while you are mentally competent and can understand what you are directing. The person that you are appointing as your "health care agent" to make such decisions if you become incapacitated, cannot be a witness. In addition, at least one of the witnesses must be someone who would not financially benefit by your death or handle your estate. It does not have to be notarized. You should discuss your wishes in detail with this person and be comfortable that they both understand and agree to carry out your wishes if needed. Often a spouse or parent fills this role but there is no requirement on who can serve as a health care agent. This is a personal decision that should not be made lightly.
You do not have to hire an attorney to draft an advance directive, but many attorneys, including the attorneys at Taylor Legal, routinely include these documents as part of an overall estate planning package. The Office of the Maryland Attorney General has an approved advance directive form on its website at https://www.oag.state.md.us/healthpol/adirective.pdf. However, you are not required to use this form.
What do you do once you have an advance directive? Be sure to keep a copy
with your permanent documents and give a copy to your health care agent and doctor. You can
also obtain a wallet card showing that you have an advance directive.
Suppose you do become incapacitated and cannot make an informed medical decision,
what happens if you have an advance directive? Before an advance directive is used a doctor must certify in writing that you are not capable of making such a decision. Once these steps are completed, your advance directive should be honored.
While Maryland law does not require that anyone have an advance directive, it can alleviate a lot of stress and uncertainty. Thus, discussion and planning ahead with an advance directive, is advisable.
You need not worry about being locked into your advance directive. As long as
you still have legal capacity to understand what you are doing, you can always change or revoke
it. This gives people added assurances that any changing wishes or needs can be carried out.