Living will requirements in Maryland

Which document is this, really

Maryland does not split the treatment-wishes document from the agent-appointment document the way many states do. State law creates one form, the Advance Directive, printed on its own statutory text as “Maryland Advance Directive: Planning for Future Health Care Decisions.” It comes in three parts: Part I, “Selection of Health Care Agent,” where you name someone to decide for you; Part II, headed “Treatment Preferences (‘Living Will’),” where you write down the care you do and do not want; and Part III, where you and your witnesses sign. You can complete Part I alone, Part II alone, or both, and either half stands on its own.

Because Part II carries the words “Living Will” right in its own heading, most people searching for a Maryland living will land on this same document. There is no separate Maryland statute for a stand-alone living will, and no separate statutory health care power of attorney either: Part I of this one Advance Directive does that job. Using Maryland’s printed form is optional. The form says so directly: “Using this advance directive form to do health care planning is completely optional. Other forms are also valid in Maryland,” as long as whatever you sign follows the same signing rules described below.

This is the same shape Myend’s free Healthcare Directive is built around: one document that names your agent and states your wishes, formatted to Maryland’s requirements.

Who can make a Maryland Advance Directive

You need to be a competent individual, which Maryland law sets at 18 or older, or, in narrower circumstances the law defines elsewhere, a minor who already has the same legal capacity as an adult to consent to their own medical treatment. Competence here is not a medical exam scheduled ahead of time. It means that at the moment you sign, you understand what naming an agent means and what the treatment preferences you write down actually do.

Signing it so it counts

Maryland runs one signing ceremony for the whole Advance Directive, covering whichever parts you filled out.

1. 1You sign

   You date and sign Part III, or direct someone else to sign for you in your presence.

2. 2Two witnesses sign

   Two adult witnesses watch you sign, then sign themselves. Maryland lets this happen in your physical presence or, just as validly, your electronic presence over live video, and the directive itself can be an electronic document carrying an electronic signature.

3. 3No notary needed

   Maryland’s own form says this in plain words: “Maryland law does not require this document to be notarized.” Two witnesses are what make it valid.

Maryland is unusually open about who can serve as a witness. The statute says any competent individual may witness, and names examples most states specifically forbid: an employee of the health care facility treating you, a nurse practitioner, a physician assistant, or even the physician caring for you, as long as they are acting in good faith. Only two limits apply. The person you are naming as your health care agent cannot also be one of your witnesses, and of your two witnesses, at least one must not be someone knowingly entitled to inherit anything from you or otherwise gain financially from your death, meaning only one of the two, not both, may stand to benefit.

Naming your health care agent

Part I of the Advance Directive is where you name your agent, called your health care agent in Maryland law, the person authorized to make medical decisions for you once your directive takes effect.

Maryland disqualifies a defined list of people rather than leaving it open-ended. You cannot name a “disqualified person”: an owner, operator, or employee of the health care facility currently treating you, unless that person would independently qualify as your surrogate decision-maker under a separate section of the law, or you appointed them before you began receiving care there. The same bar reaches a spouse, parent, child, or sibling of that owner, operator, or employee, under the same exceptions. You also cannot name someone who is the subject of a protective order naming you as the person the order protects. And you cannot name your own spouse if the two of you have signed a separation agreement, or either of you has filed for divorce, unless you are still able to make the decision to appoint them yourself, or you have otherwise made clear you want to keep them as your agent.

Once your agent’s authority takes effect, they can make the health care decisions you would otherwise make for yourself, guided by what you wrote in Part II and by any other wishes you have made known.

When it takes effect

Your Advance Directive does not switch on the moment you sign it. Unless you have written something different into your own document, it becomes effective once your attending physician and a second physician certify, in writing, that you are incapable of making an informed decision. If you are unconscious or unable to communicate by any means, the second physician’s certification is not required.

A stricter rule applies specifically to withholding or withdrawing life-sustaining treatment where you have not named an agent, or a surrogate is deciding for you. Before that can happen, either your attending physician and a second physician or nurse practitioner must certify that you are in a terminal condition or an end-stage condition, or two physicians, one of them a neurologist, neurosurgeon, or another specialist in evaluating cognitive functioning, must certify that you are in a persistent vegetative state.

If you are pregnant

Maryland’s Advance Directive form asks you directly, in both Part I and Part II, what should happen if you are pregnant. Each half carries its own section headed “In Case of Pregnancy,” explicitly marked optional and valid to leave blank. If you write instructions there, your agent and your treatment preferences follow them. If you leave the field blank, which the form says is fine, Maryland law sets no automatic rule of its own. Unlike states that set a directive aside for the whole of a pregnancy, the choice here stays entirely yours to make, or to leave open.

Changing or cancelling it

You can revoke your Advance Directive at any time, in any of four ways: signing and dating a written or electronic revocation; physically cancelling or destroying the document; telling a health care practitioner out loud, who then has to write down what you said, along with a witness to the statement, in your medical record; or signing a new Advance Directive, which replaces the old one. You are responsible for letting anyone who holds a copy know that you have revoked it, as far as that is reasonably possible.

Maryland allows one exception most states do not. You can choose, inside the Advance Directive itself, to give up your right to revoke part or all of it, including your choice of agent, for any period during which you have been certified incapable of making an informed decision. Few people use this option, and nothing requires you to, but it exists if you want your choices locked in once you can no longer change your mind.

Making sure it is found

Maryland does write registration into the statute. A second part of the same subtitle creates an Advance Directive Program in the Department of Health and says that an individual “may register an advance directive with an electronic advance directives service recognized by the Maryland Health Care Commission,” reached by health care providers at the point of care through the State-designated health information exchange. Registering is optional, and the statute says in terms that not registering does not affect your directive’s validity. The Department of Health generally points people toward MyDirectives.com as the service to use, which is an administrative recommendation rather than a name the statute carries.

Give copies to your agent, your physician, and any hospital you are likely to use, and keep the signed original where your family knows to find it. A directive nobody can locate does little good in the moment it is needed.

If you signed your Advance Directive somewhere else and are treated in Maryland, Maryland law honors it as long as it was executed under either Maryland’s rules or the rules of the state where you signed it.

This is not a MOLST

Maryland’s medical-order program is generally known as MOLST, Maryland Medical Orders for Life-Sustaining Treatment. Unlike your Advance Directive, a MOLST form is a set of medical orders your clinician signs with you, meant to travel with you between hospital, nursing facility, and home once you are already facing serious illness. Maryland law gives a completed MOLST the same standing as an EMS do-not-resuscitate order. Myend prepares the Advance Directive, the document you fill out for a future you cannot yet see. It does not, and cannot, produce a MOLST, because a MOLST has to come from a conversation with your own treating clinician.

What is different about Maryland

Maryland’s own form says it plainly: this document does not need a notary. It also lets more people witness it than almost any other state does.

Most states narrow who can watch you sign a health care document, ruling out anyone connected to your care. Maryland does the opposite. Its statute says any competent individual may serve as a witness, and names examples most states specifically forbid: an employee of the health care facility treating you, a nurse practitioner, a physician assistant, or even your own treating physician, as long as they are acting in good faith. The only person barred outright is the agent you are naming. The only other limit is narrow: of your two witnesses, at most one may stand to inherit from you or gain financially from your death.

Maryland is also unusually willing to let you lock your own choices in place. In most states, you keep the right to change your mind about a health care document for as long as you are alive, however incapacitated you become. Maryland lets you decide in advance to give up even that, if you choose to write a waiver of your right to revoke into the Advance Directive itself, covering any period in which you have been certified incapable of deciding.

And the pregnancy question is left entirely to you. Maryland’s form does not set a rule the way several other states do. It asks you directly, in a section you can fill in or leave blank, and takes your answer, or your silence, at face value either way.

Common questions

Sources and review