Maryland Healthcare Power of Attorney Requirements

The document must clearly designate a primary healthcare agent who will make medical decisions when the principal becomes incapacitated. The agent should be identified by full legal name and contact information.

The statutory Advance Directive form lets the declarant name one or more back-up agents who act if the primary agent cannot be reached or is unavailable, unable, or unwilling to serve.

Section 5-602(a)(2) authorizes appointing an agent to make health care decisions under the circumstances stated in the advance directive. The actual scope, consenting to or refusing treatments including life-sustaining measures, choosing providers and facilities, is spelled out in Part I.C of the statutory form (Section 5-603), which the declarant may narrow with written conditions or limitations.

The document must include language authorizing the release of protected health information to the designated agent in compliance with federal HIPAA regulations.

The declarant chooses, at signing, whether the agent's authority begins immediately, subject to the declarant's own right to decide while able, or only after the attending physician, or the attending physician plus a second physician for a permanent incapacity, certifies in writing that the declarant cannot make informed health care decisions. Unless the document states otherwise, Maryland law defaults to the certification-triggered option (Section 5-602(e); Statutory Form Part I.H). This is a timing election, not a durability election; the term 'durable' describes Maryland's separate financial power of attorney under Estates and Trusts Title 17.

Section 5-601(o) defines being incapable of making an informed decision as the inability to understand the nature, extent, or probable consequences of a proposed treatment, to weigh its burdens, risks, and benefits, or to communicate a decision. Section 5-602(e) specifies the certification requirements: unless the document states otherwise, the attending physician and a second physician must certify this in writing, except that only one physician's certification is needed if the declarant is unconscious or unable to communicate by any means.

The document should address whether the agent has authority to make end-of-life decisions, including withdrawal of life-sustaining treatments in accordance with the principal's wishes.

Under Maryland Estates and Trusts Code § 4-503(a)(2), an agent may make an anatomical gift on the donor's behalf unless a power of attorney for health care or other record prohibits it. Agent for this purpose is defined at Section 4-501(b) to include a person authorized to make health care decisions under a power of attorney for health care.

The document should specify whether the agent has authority to make decisions regarding mental health treatment, including voluntary admission to mental health facilities.

The document must address whether and how the agent's authority is affected if the principal is pregnant at the time decisions need to be made.

The declarant signs before two competent adult witnesses. Maryland permits facility employees, nurse practitioners, physician assistants, and the declarant's own treating physician to serve as witnesses if acting in good faith, unlike many states. The only witness disqualifications are that the named health care agent may never witness, and at least one of the two witnesses must not be knowingly entitled to any portion of the declarant's estate or to a financial benefit by reason of the declarant's death.

Notarization is not required under Maryland law (Health-General Code § 5-602).

The document must include information on how the principal can revoke or modify the Healthcare Power of Attorney.

The document should include provisions relieving healthcare providers from liability when acting in good faith reliance on decisions made by the authorized agent.

Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including the appointment of a health care agent.

In Maryland, the health care agent designation and living will are Parts I and II of the same statutory Advance Directive. Executing a new advance directive automatically revokes any earlier one (Section 5-604(a)(1)), and the statutory form's own declarant signature statement confirms this directly, stating that the document replaces any similar advance directive completed before that date.

The document should include language addressing its validity when the principal requires medical care in states other than Maryland.

Section 13-707(a) gives first priority for guardian-of-the-person appointment to a person nominated in a signed designation made when the declarant was 16 or older and had sufficient mental capacity to choose, and gives second priority, ahead of the declarant's spouse, parents, and children, automatically to a health care agent already appointed under Health-General Title 5, Subtitle 6.