Maryland Q and A

Ten commonly asked questions about PAD’s for Maryland

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s Statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in October 2013.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  Maryland’s Health Care Decisions Act allows you to appoint an agent to make decisions about your mental health treatment if you become incompetent to make decisions; to write instructions about how you would like your mental health care to proceed; or both.  In Maryland, a PAD is known as an “Advance Directive for Mental Health Treatment”.  A set of standard forms with instructions, produced by the Maryland Department of Health and Mental Hygiene, are available here.  The forms are not mandatory but are highly recommended.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  The statute says that you may, in particular: (1) identify mental health professionals, programs, and facilities that you would prefer to provide your mental health services; (2) state preferred medications; and (3) say whether you consent to your records being released to others, including other health care providers.  You also have the right to refuse mental health treatment in your instructions.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your advanced instructions must be contained in a written document or in the appropriate electronic format.  It is recommended that you use the standard forms. You must be legally competent at the time you make your advance instructions, which means that you are capable of providing informed consent to treatment.  In most cases, this means you must be over eighteen years of age.  Your document must be signed and dated by you or someone directed by you, and by two adult witnesses who must attest that you are legally competent. At least one of the witnesses must be someone other than a knowing beneficiary of your estate.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes.  A form for this purpose is included in the standard forms.  An owner, operator or employee of your health care facility, or such a person’s relative, cannot act as your agent.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  Unless one of the exceptional circumstances applies (see question 9 below), your agent may make any decision about mental health services that you would be able to make if you were competent to do so; however, your agent is not authorized to sign you into a psychiatric hospital.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”? 

Your agent must exercise substituted judgment to the extent that he or she can do so, based on your advance instructions or on wishes you have otherwise expressed.  If it is not possible to make a decision in that way, your agent must make the decision in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that your attending physician, plus one other physician not currently treating you, examine you and determine that you lack the ability to understand, evaluate or communicate a decision about a proposed form of mental health treatment.  The physicians must put that determination in writing.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  Your providers may decline to follow your Advance Directive for Mental Health Treatment: (1) if you are considered a danger to yourself or others; or (2) if a treatment requested by you or your agent is considered by your attending physician to be medically ineffective or medically inappropriate.

10.  How long does my PAD remain valid?

Your Advance Directive for Mental Health Treatment remains valid as long as you do not revoke it.  You may revoke your Advance Directive for Mental Health Treatment at any time you have not been declared incompetent.  It is a good idea to review your documents regularly.