A Maryland surrogate decision maker is someone you trust to make critical healthcare choices on your behalf when you cannot, stepping in as your advocate and voice if a sudden illness or injury leaves you unable to make your own medical decisions.
The Senior Soup’s comprehensive guide, tailored specifically for older adults and their families, explores the intricacies of Maryland’s surrogate decision-maker law.
We’ll delve into the hierarchy of decision-making authority, the responsibilities of a surrogate, and the crucial role of advance directives in ensuring your healthcare wishes are honored.
What is Healthcare Surrogacy in Maryland?
It’s essential to appoint a healthcare surrogate if you are concerned about potentially becoming incapacitated due to a severe illness, injury, or a medical condition that affects your ability to communicate, understand information, or make informed decisions, such as dementia, stroke, or being unconscious.
In these situations, your designated surrogate collaborates with your doctors and healthcare team to honor your medical preferences. Maryland law establishes a specific order of priority for surrogate decision-makers if you haven’t appointed someone in an advance directive (see the section below).
Click this link to read the Maryland Health Care Decisions Act.
Your healthcare surrogate can communicate with your medical providers, share your wishes as outlined in your advance directive, or make decisions based on your best interests, considering your diagnosis, prognosis, and any known values and beliefs you hold, which may involve discussing treatment options, receiving updates on your condition, and making critical healthcare choices.
We strongly recommend you read our Alternatives to Maryland Guardianship article to ensure your wishes are respected. It comprehensively outlines the creation of an advance directive, including a living will and healthcare power of attorney.
The Maryland Surrogate Decision Maker Hierarchy
When a Maryland resident does not have an advance directive that names a healthcare surrogate, Maryland law designates a specific order of individuals who can make medical decisions on their behalf.
This hierarchy ensures that someone close to the individual and familiar with their wishes, or at least their best interests, can make informed choices.
The priority order for surrogate decision-makers is as follows:
Court-Appointed Guardian: If a court has appointed a Maryland guardian for the individual, this person has the highest authority to make healthcare decisions. Click this link to access The Senior Soup’s Maryland Guardianship Checklist.
Spouse or Domestic Partner: If no guardian exists, the individual’s spouse or domestic partner is next in line.
Adult Children: If there is no spouse or domestic partner, the individual’s adult children (aged 18 or older) willing and able to serve can act as surrogate decision-makers.
Parents: If no adult children can serve, the individual’s parents may step in.
Adult Siblings: If the individual’s parents cannot serve, adult siblings are next in line.
Close Friends or Relatives: If none of the above individuals are available, a close friend or relative may serve as a surrogate. This person must provide an affidavit to the attending physician detailing their regular contact with the individual and familiarity with their health and values.
Maryand Healthcare Surrogacy Exceptions
It’s important to note that there are exceptions to these rules.
For instance, a Maryland court may disqualify individuals subject to a protective order, spouses going through separation or divorce proceedings, or those with conflicts of interest from acting as surrogates. When multiple potential surrogates have equal priority, the attending physician may consult the hospital’s Patient Care Advisory Committee for guidance.
When no advance directive exists, the surrogate decision-maker must make choices in the individual’s best interests, considering their diagnosis, prognosis, and known values and beliefs.
Why Understanding Maryland’s Healthcare Surrogacy Laws is Crucial
Navigating healthcare decisions during a medical crisis can overwhelm patients and their loved ones.
For older adults in Maryland, understanding healthcare surrogacy laws is particularly important because it provides clarity and direction when you’re unable to speak for yourself.
Here are a few key reasons why familiarizing yourself with this information is essential:
1. Ensures Your Wishes Are Honored
Without a clear understanding of Maryland’s healthcare surrogacy laws, there is a risk that your medical treatment might not align with your preferences.
An advance directive can ensure that healthcare decisions reflect your values, religious beliefs, and personal wishes. It’s not just about choosing treatments; it can define your desired quality of life.
2. Eases the Burden on Family Members
Family members often feel pressure to make difficult decisions during medical crises. Understanding Maryland’s legal framework around healthcare surrogacy can relieve some of this stress.
Designating a healthcare agent or ensuring that your potential surrogates are aware of your wishes provides a roadmap for your loved ones to follow, helping to avoid disagreements among family members and minimize confusion.”
3. Prevents Potential Legal Complications
When healthcare decisions lack clear instructions, it can often result in legal conflicts.
Maryland’s healthcare surrogacy laws clarify who can make medical decisions for you when you’re unable to. Understanding these laws can help families avoid conflict and legal issues, ensuring that healthcare providers can focus on providing the best possible care.
4. Provides Peace of Mind
Having a solid understanding of healthcare surrogacy laws and planning allows you to take control of your healthcare journey. Documenting your wishes and appointing a trusted advocate can give you peace of mind.
It is reassuring for your family to have a guide that empowers them to act confidently, knowing they are honoring your choices.
5. Helps Ensure Ethical Healthcare Decisions
Maryland law protects you from healthcare decisions based on finances or disabilities. Instead, the law requires healthcare surrogates to follow their wishes. They must make decisions in your best interest if your wishes are unknown.
By proactively learning about healthcare surrogacy and creating an advance directive, you’re taking an important step to protect your future healthcare decisions and lessen the burden on those you love.
Preparing now empowers you to face the unknown confidently and clearly, no matter the future.
The Specific Role of a Maryland Surrogate Decision Maker
As highlighted above, a Maryland surrogate decision-maker makes healthcare choices for you when you cannot.
As a surrogate, your primary duty is to follow the patient’s medical wishes, which they may have documented in an advance directive, expressed in prior conversations, or shared with family and friends. If your wishes are unclear, Maryland law requires the surrogate to make decisions based on your best interest to preserve your life, prevent suffering, and promote your dignity.
Here’s how surrogates fulfill their duties under the Maryland Surrogate Decision Maker Act:
- Follow Known Wishes: Surrogates must make every effort to base decisions on their expressed preferences regarding medical treatments, including life-sustaining procedures, drawing from any available source of information about their wishes.
- Consider Religious and Personal Beliefs: Your surrogate should consider your religious beliefs, moral values, and any previously expressed preferences when making decisions.
- Evaluate the Patient’s Best Interests: If your healthcare wishes are unclear, Maryland surrogates must carefully evaluate the potential benefits and burdens of each treatment option, your current prognosis, and how the treatment might affect your quality of life.
- Inform the Patient: Whenever possible, surrogates must inform you of proposed treatments and notify you that someone is acting as your authorized decision-maker. However, a surrogate may not always be able to inform you due to your medical condition.
Limitations on Surrogate Authority: It’s critical to understand that some instances base medical decisions on any pre-existing mental or physical disability you may have or on financial factors. Additionally, Maryland law prohibits surrogates from authorizing certain actions, such as sterilization, some mental health treatments, and withholding or withdrawing life-sustaining treatment in some instances.
What Happens if Maryland Healthcare Surrogates Disagree?
Disagreements can sometimes arise when multiple individuals at the same priority level (e.g., adult children) are authorized to act as healthcare surrogates in Maryland.
To avoid potential conflicts, The Senior Soup recommends that Maryland families proactively discuss and designate a single surrogate decision-maker whenever possible.
The Maryland Attorney General’s office provides a helpful form to document this agreement.
Hospital Setting: If the patient is in a hospital, such disagreements may be referred to the hospital’s patient care advisory committee or ethics committee to help facilitate a resolution.
Out-of-Hospital Setting: If the patient is not in a hospital, Maryland law prevents a physician from withholding or withdrawing life-sustaining treatment (treatment that, if withheld or withdrawn, would result in death) unless all surrogates in the same priority level agree on the decision. If surrogates cannot reach a consensus, seeking legal guidance or court intervention may be necessary to resolve the dispute.
How to Plan for Healthcare Surrogacy: Creating an Advance Directive
While having a surrogate decision-maker identified by Maryland law is helpful, creating an advance directive provides greater peace of mind and a stronger guarantee that your healthcare wishes will be honored.
An advance directive is a legally binding document that allows you to appoint a healthcare agent (someone to make medical decisions for you if you cannot) and specify your preferences for medical treatment.
Here’s how to create an advance directive in Maryland:
Complete the Maryland Advance Directive Forms: Maryland offers specific forms for creating an advance directive. These forms combine a healthcare agent’s appointment and medical treatment instructions, including a living will section for end-of-life care. Click here to download the Maryland Attorney General’s Advance Directive forms.
Be Specific in Your Directive: Your advance directive can be as detailed or general as you prefer. You can specify treatments you want or do not want in various situations, such as a terminal illness (an incurable condition that is likely to cause death within a relatively short time) or a permanent unconscious condition.
Discuss Your Wishes with Family: Openly communicate your healthcare preferences with your family and healthcare agent. Doing so can help prevent disagreements and ensure your loved ones understand your choices.
Meet Witness Requirements: Ensure your advance directive is signed and dated in the presence of two adult witnesses who are not your healthcare agent or related to you by blood or marriage.
Regularly Review Your Directive: Your healthcare preferences may change over time. Review and update your advance directive periodically to reflect any changes in your wishes or circumstances.
Store and Share Your Directive: Keep the original document in a safe place and provide copies to your healthcare agent, physician, and family members. You may also want to keep a copy of your important papers.
Maryland Healthcare Surrogate Best Practices
Maryland law mandates that healthcare surrogates always act in the patient’s best interest, prioritizing their well-being and considering factors such as preserving their life, preventing suffering, promoting their dignity, and respecting their autonomy.
Here are some key points for anyone serving as a Maryland healthcare surrogate:
Strive to Honor the Patient’s Wishes: Decisions should reflect what the patient would have chosen if they could make their own healthcare decisions.
Gather Comprehensive Information: Surrogates should request and review the same information the patient would have access to, including medical records, test results, treatment options, potential risks and benefits of each option, prognosis with and without treatment, and any advance directives the patient may have created.
Consider the Patient’s Values: Consider the patient’s values, beliefs, and preferences, drawing from conversations, knowledge of the patient, or any written expressions of their wishes.
Communicate and Collaborate: Engage in open communication with the healthcare team, ask clarifying questions, and don’t hesitate to seek second opinions when necessary. Consult with other family members or close friends who may have insights into the patient’s wishes or values.
Document Your Decisions: Keep a record of your decision-making process, including the information you gathered, the reasons for your decisions, and any consultations you had with others. This documentation can be helpful for future reference and to demonstrate that you acted in good faith.
Act in Good Faith: Maryland law requires surrogates to act in good faith, meaning they must make decisions honestly and with the patient’s best interest as their top priority.
Empowering A Marylander Surrogate Decision Maker
Understanding the role of a Maryland surrogate decision-maker empowers you to plan for the future, ensuring your medical wishes are honored and respected, even when you cannot speak for yourself.
By taking proactive steps now, such as creating a comprehensive advance directive and communicating your preferences with loved ones and friends, you can face the future confidently, knowing that your healthcare decisions will be guided by your values and respected by those whom you trust most.
This knowledge brings you peace of mind and provides invaluable guidance for your family and loved ones, fostering a sense of preparedness and support during challenging times.
Ryan Miner, MBA | Co-Founder and Podcast Host | The Senior Soup
Hi, I'm Ryan!
I co-founded The Senior Soup Soup with Raquel Micit in September 2022. Together, we host The Senior Soup Podcast.
I am a community relations manager for Ennoble Care in Maryland, where I am responsible for marketing our home-based primary care healthcare practice.
I have over 15 years experience in healthcare, senior services, senior care, marketing, public policy, and search engine optimization.
I have a MBA from Mount St. Mary's University and a BA from Duquesne University.