Maryland Advance Directive Form [PDF]

Under Maryland law, an advance directive (or advance health care directive) is a document created by an individual (the “declarant”) in either written or electronic form. This document provides healthcare instructions about withholding or withdrawing treatments (such as surgeries or other therapies) based on the declarant's wishes regarding their health.

A healthcare advance directive generally includes a living will, which outlines the declarant's wishes for end-of-life care, and a durable medical power of attorney, which appoints an agent to make healthcare decisions for the declarant when they cannot make decisions on their own due to incapacity.

Signing Requirements for Maryland Advance Health Care Directive

To ensure an advance directive form is legally valid in Maryland, it must comply with the requirements outlined in Section 5-602 of the Maryland Code. Here is a clear overview of these requirements:

Signing Requirements for Maryland

General requirements. The advance directive must be dated and signed by the declarant or at their direction and witnessed by two people who are present, either physically or online, at the time of signing.
Remote witnessing. If the signing of the directive was witnessed using remote methods (such as video calls) or electronically, it is considered legally valid if done while the Executive Order permitting remote witnessing and electronic signing was in effect (e.g., during the COVID-19 pandemic).
Witness eligibility. Any competent individual may serve as a witness, including employees of health care facilities, nurse practitioners, physician assistants, or physicians providing care to the declarant, provided they act in good faith.
Witness restrictions. The declarant's healthcare agent cannot be a witness, and at least one witness must not have a financial interest in the declarant's estate or stand to benefit financially from the declarant's passing.
Unwitnessed electronic advance directives. This advance directive in the form of a video recording is valid if it is dated and stored by an electronic advance directive service recognized by the Maryland Health Care Commission.
Oral advance directive. It is valid if made in the presence of the attending physician, physician assistant, or nurse practitioner, and one witness. The substance of the oral directive must be documented in the medical record (including the date) and must be signed by the attending physician or authorized person and the witness.

Maryland Advance Health Care Directive Revocation & Changing

A Maryland advance directive becomes effective when the declarant is no longer able to make informed decisions. As stated in Section 5-604 of the Maryland Statutes, the advance directive for health care can be revoked or changed at any time by the declarant through various methods.

Revoking an advance directive includes signing and dating a written or electronic document, physically destroying the document, making an oral statement to a health care practitioner, or creating a new directive. If revoked orally, the practitioner must document it in the medical record.

On the other hand, the declarant may waive their right to revoke the directive if they have been certified as incapable of making informed decisions.

Additional Legal Considerations for the Maryland Advance Health Care Directive

According to Section 5-604.1, the declarant may include a statement of consent to donate all or part of their body for purposes such as organ donation, as outlined in Maryland’s Estates and Trusts laws.

Section 5-606 says that health care providers cannot stop life-sustaining treatments just based on an advance directive or a surrogate’s decision alone. To do so, the provider must have:

Certification from the patient’s attending physician and another doctor or nurse that the patient is terminally ill or in an end-stage condition
Two doctors, including a specialist in brain function, must confirm that the patient is in a persistent vegetative state

As stated in Section 5-623, individuals can register their advance directives with an electronic service approved by the Maryland Health Care Commission. If they amend or revoke the directive, they must notify the service to ensure the updated version is reflected and accessible to health care providers.

How to Choose a Health Care Agent in Maryland

To choose the health care agent in Maryland, you should consider someone you trust completely and who understands your values and wishes regarding health care. Ideally, choose a person who can handle stressful situations and communicate effectively with medical professionals.

It is also important that your agent is willing and available to serve in this role. The Maryland health care proxy must be at least 18 years old and cannot be your health care provider. It could be your family member, close friend, or attorney.

What Happens if You Don’t Have an Advance Directive in Maryland?

If you don’t have an advance directive in Maryland, medical decisions will be made by someone chosen based on state law. Typically, this could be a close family member, such as a spouse, adult child, or parent. If no family members are available, a court-appointed guardian may step in.

Without an advance directive, there’s no guarantee that your health care wishes will be followed, as the person making decisions may not fully understand your preferences. That’s why advance care planning helps avoid this uncertainty by ensuring your medical wishes are clearly documented.