An advance directive, as defined under the Maryland Health Care Decisions Act, allows a person to make health care decisions in advance of an illness. A mentally competent individual can decide today about the kind of medical care he or she wants or does not want in the future.
A person must be mentally competent to make an advance directive. If a person is not able to make such decisions and is in need of medical treatment, a surrogate decision maker or a guardian of the person may make the necessary decisions for the individual.
The Maryland Office of the Attorney General has developed an easy-to-understand pamphlet about advanced directives—living wills and the appointment of a health care agent—as well as information about organ donation. The Office of the Attorney General has also provided forms that you and/or your loved ones can print out and complete today to ensure that your wishes regarding health care in the future are known.
There are medical advances that can provide individuals with extensive treatment if they are affected by serious medical injuries or diseases. A person may not want these life-sustaining treatments. The legal definition of a life-sustaining procedure is “any medical procedure, treatment or intervention that utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function and is of such a nature as to afford a patient no reasonable expectation of recovery from a terminal condition, persistent vegetative state, or end-stage condition.” Simply put, this means any treatment that could keep a person from dying but is not expected to cure the disease. A classic example of a life-sustaining treatment is a feeding tube for a patient with Alzheimer’s disease. The feeding tube will provide food but will not cure the disease.
If a person does not want life-sustaining treatment and he or she is not able to express this wish at the time due to a physical or mental disability, that person might be given the very kind of care and treatment he or she does not want to receive. An advance directive addresses this issue.
By preparing an advance directive, your loved one can:
- Appoint another person(s) to make decisions for him or her, thus giving the actual medical decision-making responsibility to a trusted family member or friend. (This is an advance directive that appoints a health care agent.)
- Appoint a health care agent and specify the type of care he or she wants. In this case, the health care agent needs only to carry out the individual's stated wishes and not make any decisions independent of the directives given. (This is an advance directive that appoints a health care agent and gives instructions.)
- State the type of care he or she wants in certain situations. This allows the individual to specify the kinds of treatment and care he or she wants under certain circumstances. (This is called a living will. It does not appoint a health care agent; rather, it specifies to the doctors what type of care the individual does not want to receive.)
The person making the advance directive, who is called the grantor, can appoint a person(s), called a health care agent, to give informed consent to medical treatment for the grantor. Unless the advance directive states otherwise, the health care agent's decision-making power becomes effective only when two doctors certify in writing that the person is unable to make an informed decision.
Informed consent is consent to treatment given to a health professional by a patient or legal decision maker. For the consent to be informed, the patient or legal decision maker must understand the nature, the dangers, and the possible side effects of the treatment.
A living will is an advance directive developed for very specific circumstances. A living will directs that the individual does not want certain life-sustaining treatment, but it only goes into effect if a person is diagnosed with a terminal illness and death is imminent or if a person is in a persistent vegetative state. (Imminent death is usually interpreted as death that is expected to occur within a few days or weeks.)
The individual also has the option, under the law, to add end-stage condition. It can be useful if a person meets the above criteria, but because it is limited, one may wish to have both a living will and appoint a health care agent to ensure that all possible conditions are addressed. A living will does not appoint an agent(s) with authority to give informed consent to medical treatment.
The Five Wishes document helps you express how you want to be treated if you are seriously ill and unable to speak for yourself.
Important Definitions to Understand
Terminal Illness/Condition: An incurable condition caused by injury, disease, or illness, which, to a reasonable degree of medical certainty, makes death imminent, and from which, despite the application of life-sustaining procedures, there can be no recovery.
Persistent Vegetative State (PVS): A condition caused by injury, disease or illness in which a person has suffered a loss of consciousness, exhibiting no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflex activity of muscles and nerves for low level conditioned response; and from which, after the passage of a medically appropriate period of time, it can be determined, to a reasonable degree of medical certainty, that there can be no recovery.
End-Stage Condition: An advanced, progressive, irreversible condition caused by injury, disease, or illness that has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and for which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.