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Legal Rights of Marylanders

by J. Joseph Curran Jr., Attorney General

Adults who are not mentally disabled generally have the right to decide for themselves whether they want medical treatment. This right to decide – to say yes or not to treatment – extends to treatments needed to sustain life.

Tragically accident or illness can take away a person's ability to make health care decisions. But decisions still have to be made; if you cannot do so, someone else will, in some situations after the burden and delay of court proceedings. you should consider whether you want to take steps now to control these decisions, so that they will reflect your own wishes.

Maryland Law recognizes three ways of making health care decisions for the future, including decisions about treatments needed to sustain life. These three ways are: a living will, a power of attorney for health care (often called "a durable power of attorney"), and a documented discussion with your physician.

Living Will

A living will is a specific legal form, approved by the Maryland Legislature, in which you can say that you do not want life-sustaining treatment if you are in a terminal condition. A living will speaks only to treatment at the last stage of a terminal condition. It goes into effect when two doctors conclude that you are no longer able to decide matters for yourself and that your condition is terminal.

You should particularly focus on whether you want your living will to contain a decision about food and water through tubes. If you decide that you do not want artificially supplied food and water, you must add a sentence to the standard living will form saying so.

Durable Power of Attorney for Health Care

A power of attorney for health care (often called a "durable power of attorney" is a legal document that lets you name someone you know and trust, your agent, to make health care decisions for you. you decide how much power your agent has and when the agent can exercise that power. If you want, you can give your agent broad power to make any decision about treatment that you could make. Unlike a living will, a power of attorney for health care need not be limited to terminal conditions. It can allow your agent to deal with whatever treatment issues might come up.

In addition to giving your agent power to make decisions on your behalf, you can also use the power of attorney for health care to say what you want done in some situations. No one can predict every decision that might have to be made, but your written guidance about your wishes can help your agent for example by telling your agent whether you want life sustaining treatment in case of terminal condition or permanent loss of consciousness.

Discussion with Physician

Adults often make health care decisions during discussions with their physician. The physician describes the options and explains the pros and cons of each; but you make the final decision.

The same process can be used to decide about the possible use of life sustaining treatment, what sorts of medical intervention you want, given particular situations that might occur. For example, you might decide in this way about the use of CPR (cardiopulmonary resuscitation). If your decision is written in your medical record at the time it is made, it is legally effective and should be honored by your health care providers. You should look at what is written down to make certain that it reflects your wishes.

Conclusion

A summary like this cannot answer all of your questions. If you have questions about your particular legal situation, please talk to a lawyer. Also talk to your health care provider about the medical issues. Let those who will be caring for you know what you have decided.

If you would like a copy of forms for a living will and power of attorney for health care, write to the Maryland Attorney General's office, Opinions Section, 200 Saint Paul Place, Baltimore, Maryland 21202.