The Issues:
Marriage Equality
Advance Medical Directives
ALERT: Equality Maryland Secures Changes to State Law Governing Advance Medical Directives
New protections through advance directives for LGBT couples in Maryland
This year, Equality Maryland worked with legislators to expand protections for same-sex couples by broadening the legal scope of advanced medical directives. The new law allows same-sex couples to designate their partners as their "health care agent" and specifically gives them the right to:
- visit them in the hospital;
- ride with them in an ambulance; and
- take possession of their remains after death, including making arrangements for funeral or cremation.
Maryland law does not treat same-sex couples as family. Advance directives, and especially these new rights, give us the opportunity to act as the family we really are. Here are some examples of the traumatic experiences some of us have faced without advance directives and prior to the availability of these new protections.
Mary Beth Dyer and her partner, Fran, have been together for more than fifteen years. That didn't matter to the doctor who was assigned to Mary Beth's case when she was hospitalized with unexplained blood-loss in 2000. Mary Beth's father had to come from another city to speak with the physician and relay the information to Fran. Even though Fran was clearly the person who would take over caring for Mary Beth after her release, the doctor refused to talk to her. Mary Beth's father had to relay information from the doctor to Fran throughout Mary Beth's hospital stay.
Donald Johnson and his partner, Kenneth Tennison, were together for many years and raised two children together. When Kenneth died, Donald tried to have him cremated, which he knew was his final wish according to his will. However, the funeral home treated Donald as a legal stranger and required him to get written permission from Kenneth's mother. Had they been married, or had Kenneth executed an advance directive and appointed Donald as his agent for disposition of his body, the funeral home would have had to recognize his authority to make final decision for his life partner.
If you want to protect yourself and your partner, we strongly advise that you consider an advance medical directive. (Even if you already have one, it may need updating to ensure that it has all of the newly available protections for you and your family.)
In addition to the changes to advance directive forms, a bill sponsored by Governor Ehrlich creates a registry for advance directive forms. While this bill is not specific in any way to same-sex couples, it will offer peace-of-mind to those who may not have legal documents on them in the event of an emergency. Any individual will be able to register their advance directive with the Department of Health and Mental Hygiene and annotate on their driver's license or identification card that they have an advance directive on file with the state. In an emergency, a hospital can check for their advance directive on file.
The law is not yet in effect and the Department of Health and Mental Hygiene directory is not yet available; please check back as Equality Maryland will let you know as soon as it is completed.
What are advance directives?
An Advance Medical Directive combines a Durable Power of Attorney for Health Care and a Living Will in one document:
- The Durable Power of Attorney for Health Care covers medical decisions. It gives your health care agent (sometimes called an "attorney in fact") the power to make decisions about your medical treatment in the event you are unable to do so.
- The Living Will is an instruction to your doctor about what life-sustaining measures you want, once you are unconscious with no hope of recovering.
Discuss your health care wishes with your doctor and give him or her a copy of your Advance Medical Directive.
Do I need an advance directive?
Absolutely! By creating an advance directive, you get to make decisions about your health care before you're faced with a serious injury or illness. This will also spare your loved ones the stress of making decisions for you when you are sick. Any person 18 years or older can prepare an advance directive.
Advance directives are especially important for LGBT Marylanders because...
Under current law, same-sex couples, no matter how long they've been together, are not considered next of kin. Without an advance directive, your partner's blood relatives will be called upon to make decisions in your stead.
Advance directives do NOT replace civil marriage
Married couples are automatically granted the legal right to make healthcare decisions for one another. Heterosexual couples are also rarely asked to supply proof of their relationships with a marriage license. Gay and lesbian couples, however, should carry their advance directives with them at all times, in case of emergency. Sadly, in some cases, hospital personnel who are ignorant of the law, or harbor prejudices against same-sex couples, have not honored advance directives. Although we now have the right to file complaints against the hospital personnel, what's really important for us is to be by our partner's side.
To file a complaint about a health care facilty not honoring an advance directive, contact the Office of Health Care Quality as follows:
- Nursing homes: 410-402-8201 (or 877-402-8219)
- Hospitals: 410-402-8016
- Online: http://www.dhmh.state.md.us/ohcq
- Address: Bland Bryant Building, SGHC
Catonsville, MD 21228
To learn more about the benefits of civil marriage, click here.
Frequently Asked Questions
How do I obtain the new advance directive forms?
For further information, visit http://www.oag.state.md.us/Healthpol/AdvanceDirectives.htm.
To download the form directly using Adobe Acrobat reader, visit http://www.oag.state.md.us/Healthpol/adirective.pdf.
Note that this form is optional. Others may be used. We recommend that you consult with an attorney about filling out an advance directive and other planning documents.
Does filling out the new advance directive form nullify an old form?
Yes, you can change or take back your advance directive at any time. The most recent one is the one that will count, but be sure to tell your doctor that you have a new advance directive.
Does someone need to witness an advance directive?
Yes, two adults are needed to witness your signature. If you name a health care agent, that person cannot be a witness for your advance directive. Also, one of the two witnesses must be someone who (i) will not receive money or property from your estate and (ii) is not the one you have named to handle your estate after your death.
Are these forms valid in another state?
It depends on the law of the other state. Most state laws recognize advance directives made somewhere else.
Do the forms have to be notarized?
No, but if you travel frequently to another state, check with a knowledgeable lawyer to see if that state requires notarization.
Do any of these documents deal with financial matters?
No. There is another legal document called a Durable General Power of Attorney that covers financial matters. It gives your agent (also called your "attorney-in-fact") the power to sign your checks, use your bank accounts, and handle your property and money matters as if he or she were you. If you are interested in this or want to learn more, we recommend you talk to an attorney.
Can my family decide treatment issues differently from what I wrote?
It depends on how much flexibility you want to give. Some people want to give family members or others flexibility in applying the living will. Other people want it followed very strictly. There is a place to say what you want on the form, in Part II, Paragraph G.
To whom should I give copies of my advance directive?
Give copies to your doctor, your health care agent and backup agent(s), hospital or nursing home if you will be staying there, and family members or friends who should know of your wishes.
How do I register my advance directive with the state?
This information is not yet available. Please check back here or on the Attorney General's website at http://www.oag.state.md.us/Healthpol/AdvanceDirectives.htm.
Is there a cost associated with accessing the forms or with registering them?
There is no cost to access the forms. There will likely be a small fee for registration.
How can I find a lawyer?
Gaylaw, the lesbian, gay, bisexual and transgender bar association for the national capital area, has an attorney referral service which you may access at http://www.gaylaw.org/attorneysearch.html.
If you are lower-income, you may be able to get free legal assistance at the Whitman Walker Clinic Legal Services Program; their phone number is (202) 939-7627. The Clinic also maintains a referral list of gay-friendly attorneys.
Another helpful service is gaylawnet: http://www.gaylawnet.com/attorneys/us_md.htm.
Click here to return to the Marriage Equality main page.