What Happens if You Don’t Have a Advance Directive

Baker Park, Frederick, MD

Baker Park, Frederick, MD

You’ve probably heard horror stories about people who didn’t have advance directives or living wills: Terri Schiavo is the most high-profile example. In Maryland, not having an advance directive means that someone you did not choose could be making important health care decisions that could prolong or shorten your life.

An advance directive typically consists of two parts: (1) a health care power of attorney that lets you designate someone to make medical decisions on your behalf if you are unable and (2) a living will that lets you express your wishes about life support in certain end-of-life scenarios. Both parts can work together –‒ your health care agent you designated should interpret your wishes from your living will –‒ but either part is valid without the other.

If you haven’t designated someone as your health care agent in your advance directive, Maryland law lets family members act as surrogate decision makers. The law first looks to a patient’s spouse, then to adult children, then a parent, then other family members or friends. This priority may not be what you would choose for yourself. You could get into more uncertainty if two or more people with the same priority (say, two adult children) disagree about what to do. If the surrogates can’t agree, a physician has to consult an ethics committee and follow their recommendation.

If you don’t have a living will, you could be kept alive when you prefer natural death to occur. The United States Supreme Court did not allow life-sustaining equipment to be removed without clear and convincing evidence that the patient wanted removal. Being kept alive on life support can result in physical suffering and being a burden on your family. And the costs of health care for the last month of life can be astronomical.  A living will can drastically reduce these costs: financial, emotional and physical.

If you would prefer that life sustaining procedures always be used, or be used in certain circumstances, you can specify that in your living will. In that case, the cost of not having a living will might be having life-sustaining procedures withdrawn when you wouldn’t want them to.

The Maryland Attorney General has created a flow chart for physicians to use when a patient needs treatment and is incapacitated. It gets very tricky when there is no advance directive to follow.

An advance directive lets you avoid the mess that can occur when one isn’t around. Talk to an estate planning attorney to help you through the process.

Montefusco Estate Planning, LLC is an estate planning law firm in Frederick, MD. If you are interested in our services, contact us today. This information is written for the context of Maryland estate planning but is not legal advice for anyone. For more information, read our disclaimer.

Montefusco Estate Planning, LLC
8133 Runnymeade Dr Frederick, Maryland 21702
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