Maryland Mutual Wills or Last Will and Testaments for Man and Woman living together, not Married with Minor Children

Note: This summary is not intended to be an all inclusive discussion of the law of wills in Maryland, but does contain basis and other information.

Selected Definitions

An advance directive is:

(1) A witnessed written document, voluntarily executed by the declarant in accordance with the statutory requirements; or
(2) A witnessed oral statement, made by the declarant in accordance with the statutory requirements.

An agent is an adult appointed by the declarant under an advance directive made in accordance with the provisions of this subtitle to make health care decisions for the declarant.

A competent individual is a person who is at least 18 years of age or who under 20-102 (a) of this article has the same capacity as an adult to consent to medical treatment and who has not been determined to be incapable of making an informed decision.

The declarant is a competent individual who makes an advance directive while capable of making and communicating an informed decision.

A life sustaining procedure (which includes includes artificially administered hydration and nutrition, and cardiopulmonary resuscitation) is any medical procedure, treatment, or intervention that:

(1) Utilizes mechanical or other artificial means to sustain, restore, or supplant a spontaneous vital function; and
(2) 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.

A persistent vegetative state is a condition caused by injury, disease, or illness:

(1) In which a patient 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
(2) 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.

A terminal condition is 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.

Procedure - Living Will

Any competent individual may, at any time, make a written advance directive regarding the provision of health care to that individual, or the withholding or withdrawal of health care from that individual.

Agent

Any competent individual may, at any time, make a written advance directive appointing an agent to make health care decisions for the individual under the circumstances stated in the advance directive.

An owner, operator, or employee of a health care facility from which the declarant is receiving health care may not serve as a health care agent unless the person would qualify as a surrogate decision maker under 5-605

(a). An agent has decision making priority over any individuals otherwise authorized under this subtitle to make health care decisions for a declarant.

Signature and Witnesses

A written advance directive must be dated, signed by or at the express direction of the declarant, and subscribed by two witnesses.

Any competent individual may serve as a witness to an advance directive, including an employee of a health care facility or physician caring for the declarant if acting in good faith.

The health care agent of the declarant may not serve as a witness.

At least one of the witnesses must be an individual who is not knowingly entitled to any portion of the estate of the declarant or knowingly entitled to any financial benefit by reason of the death of the declarant.

Oral Directive

Any competent individual may make an oral advance directive to authorize the providing, withholding, or withdrawing of any life sustaining procedure or to appoint an agent to make health care decisions for the individual. An oral advance directive shall have the same effect as a written advance directive if made in the presence of the attending physician and one witness and documented as part of the individuals medical record. The documentation shall be dated and signed by the attending physician and the witness.

Effectiveness of Advance Directive

Unless otherwise provided in the document, an advance directive shall become effective when the declarants attending physician and a second physician certify in writing that the patient is incapable of making an informed decision.

If a patient is unconscious, or unable to communicate by any means, the certification of a second physician is not required.

Notice

A declarant has the responsibility to notify the attending physician that an advance directive has been made. In the event the declarant becomes comatose, incompetent, or otherwise incapable of communication, any other person may notify the physician of the existence of an advance directive.

An attending physician who is notified of the existence of the advance directive must:

(1) If the advance directive is written, make the advance directive or a copy of the advance directive a part of the declarants medical records; or
(2) If the advance directive is oral, make the fact of the advance directive, including the date the advance directive was made and the name of the attending physician, a part of the declarants medical records.

A declarant has the responsibility to notify the a health care agent that the agent has been named in an advance directive to act on the declarants behalf.

Form

Use of the statutory form is optional.

5-604. Revocation of an advance directive.

(a) Signed and dated writing.- An advance directive may be revoked at any time by a declarant by a signed and dated writing, by physical cancellation or destruction, by an oral statement to a health care practitioner or by the execution of a subsequent directive.
(b) Oral statement.- If a declarant revokes an advance directive by an oral statement to a health care practitioner, the practitioner and a witness to the oral revocation shall document the substance of the oral revocation in the declarants medical record.
(c) Notification.- It shall be the responsibility of the declarant, to the extent reasonably possible, to notify any person to whom the declarant has provided a copy of the directive.

Anatomical Gifts in Advance Directive

An advance directive may contain a statement by a declarant that the declarant consents to the gift of all or any part of the declarants body for any one or more of the purposes specified in Title 4, Subtitle 5 of the Estates and Trusts Article.