In the recently completed legislative session, a bill was passed to revoke the ability of certain individuals to serve as an Agent under a Medical Directive. A Healthcare Directive informs your health care provider about your wishes regarding your care and who can speak for you if you are unable to communicate decisions in that regard. The person creating/signing the document is called the “declarant” and the person you are giving the authority to act is called the “agent.” In response to concerns from organizations representing victims of domestic violence, the legislature made changes to the laws regarding both written advanced medical directives and the default provisions of the Maryland Code regarding Health Care Agents. In the absence of the appointment of an agent under a written medical directive or a guardianship of the person, Maryland law has an established order of individuals who have priority to make health care decisions for an individual incapable of doing so on his or her own behalf.
Under the newly passed law, a person is disqualified from serving as the agent for another if the declarant has received an interim, temporary or final protective order against the prospective agent. Additionally, the prospective agent is prohibited from serving if that prospective agent and the declarant have a written separation agreement or have filed for divorce. The disqualification in the case of a protective order cannot be rebutted but the disqualification in the cases of a separation or divorce may be rebutted if the declarant communicates in writing that he or she would still like the prospective agent to serve. These changes also apply when the declarant has executed a written medical directive.
It has always been important to execute a written medical directive in order to state your wishes as to who should communicate with medical professionals on your behalf if you are unable to do so. As a result of the 2017 amendments, it is now even more important to designate an alternate agent other than your spouse or significant other. In our practice, we always hope for the best and plan for the worst. Rather than relying on the statutory Wealth POscheme which might place someone in this important role who is not an appropriate decision maker, plan for the possibility that your first choice could, even contrary to your intent, be disqualified from serving. In addition, in the event of a separation or divorce in which you would choose your former spouse as your spokesperson, make sure your desire to do so is put in writing after the separation has occurred.
If you have not prepared or recently reviewed your estate planning documents, Elizabeth Green can be contacted at (410) 769-6150 or egreen@pklaw.com.
Elizabeth A. Green is a Member in PK Law’s Wealth Preservation Department. Ms. Green advises individuals with both basic and sophisticated estate planning needs including charitable planning and giving.
This information is provided for general information only. None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.
