An illness can leave a family facing choices about surgery or medication. If you cannot express your wishes, uncertainty about who has authority can add fear to an already difficult time.
If you have delayed estate planning, knowing the default rules may show who could make choices about your health and how family relationships can shape those decisions.
The state’s order of decision-making authority
An advance directive records your health care wishes and can name someone to decide when you cannot choose the medical care you receive. Without one, the Maryland Health Care Decisions Act determines who has authority after the required medical professionals certify in writing that you cannot make a choice based on an understanding of the treatment.
Under the law, you lack that capacity if you lose the ability to understand a proposed treatment and its likely effects, weigh its possible advantages, dangers and drawbacks or convey your choice. Once incapacity has been established, providers look to eligible people if you have no available chosen representative. They follow this order:
- A guardian, if a court has already appointed one
- The person married to you or your domestic partner
- Your adult child or children
- Your parent or parents
- Your adult sibling
- A close friend or another family member who knows your health and activities
Providers may consult a lower group only when everyone in each higher group is unavailable. A friend or other relative at the final level could provide the attending doctor with an affidavit describing regular contact and knowledge of your health, activities and beliefs.
How the default hierarchy can divide a family
The law’s order may differ from your closest personal bond. An estranged adult child could rank ahead of a devoted sibling or longtime friend under the statutory order. That result can surprise loved ones who assumed the person most involved in your life would decide.
Conflict may also arise among relatives who share equal priority, such as two adult children. One might favor a feeding tube while another recalls that you opposed prolonged treatment. When the patient receives care at a hospital, the doctor overseeing treatment or another authorized person refers such a dispute to the institution’s medical review panel. The additional review can delay a treatment decision while emotions run high.
Why you may benefit from naming your own decision-maker
Naming your own health care agent can prevent Maryland’s default hierarchy from giving authority to a person you might not have selected. Recording your treatment choices may also allow your doctors and loved ones to honor your wishes if you become unable to communicate.
Legal guidance can help you create language that fits your goals and complies with signing requirements. It may also address backups, family dynamics and the scope of your agent’s authority.