Maryland Bar Bulletin
Publications : Bar Bulletin

Editor: W. Patrick Tandy

May, 2004

Is custom tailoring really better than buying off the rack when it comes to legal services? The ability of a law office to standardize and recreate documents with ease has made document production routine and cost-effective.

Many clients, concerned with ever-increasing hourly billing rates, have little patience for lengthy discussions, draft documents or reflections on the possible consequences of standard documents. For the truly cost-conscious client, the proliferation of do-it yourself websites makes it possible to purchase documents without having to meet with an attorney.

Complicating the decision of whether to purchase “do-it-yourself” software or seek legal assistance from an attorney is the proliferation of statutory forms. The model for statutory advance directives and default surrogate laws is the Uniform Health Care Decisions Act. The Uniform Act was created in 1993 as a national model by the National Conference of Commissioners on Uniform State Laws. According to the ABA Commission on Legal Problems of the Elderly, as of July 1, 2001, each state and the District of Columbia have health care proxy statues. Forty-seven states and the District of Columbia have separate living will statutes and the three states without separate statues recognize living will type instructions under their health care proxy statutes. In Maryland, the Health Care Decisions Act sets out two optional forms: a Living Will and an Advance Medical Directive. The Advance Directive has two parts, Parts A and Part B. The forms may be completed in whole or in part. You are not required by law to use the statutory forms. Similar to most standardized forms, the Maryland statutory forms are limited in what they can accomplish, hence, limiting their coverage to end-of-life decision-making. The majority of health care decisions that must be made for patients lacking capacity concern questions about day-to-day care, placement options and treatment options short of “pulling the plug.” Here are 10 reasons not to use the Maryland statutory forms, which are also reasons clients are well-advised to have an attorney draft their Advance Medical Directive:

1. The statutory forms were created by a legislative body, drafted to reflect the legislative history of and the decisions made by the Maryland General Assembly as set out in the Health Care Decisions Act so therefore may not apply in other settings. The forms were created as a guide.
2. The statutory forms are standardized. It is not wise to select an “official” form then sign it with no changes. Any form can be (and is) improved when personalized to reflect the individual’s particular values, priorities and wishes. Changing the language of a form may create doubt as to the validity of the form.
3. The statutory forms can be difficult to understand. The forms require specific steps to be completed correctly. Witness instructions must be followed exactly or the documents may be deemed invalid.
4. The statutory forms are provided with no legal advice. If you have potential family conflicts, special legal concerns or unusual requests, consultation with an attorney is not guaranteed.
5. The statutory forms are written in a legalistic manner. Most boilerplate instructions express general sentiments about wanting treatments that serve to prolong the dying process. Your current medical condition and its implications may not be specifically addressed; consequently, your nurses and doctors may not understand your wishes.
6. The statutory forms may not be recognized in another state. The laws of each state vary in terminology, the scope of decision-making, restrictions and the formalities required in the execution of documents. If the standardized documents fail to meet the technicalities of state law and are not controlling, they will only serve as evidence of your wishes.
7. The statutory form may not obligate doctors and other health care providers. Using general language that rejects “heroic measures” may give rise to interpretation problems.
8. The statutes created default surrogates. If there are no advance directives naming a proxy, default family members are named in order of kinship; very few statutes authorize a “close friend” to make decisions, and then normally only when family members are unavailable.
9. The statutory forms are not available for isolated, unbefriended seniors. If there is no one who can serve as a surrogate decision maker, the only alternative may be to go to court for guardianship, which can be problematic.
10. The statutory forms encourage everyone to execute living wills.

Needs (not wants) require an advance medical directive. No one can anticipate the specific and often complicated circumstances in which fate will place them in future. Many clients believe that off-the-rack legal services suit them just fine; this is especially true in the area of end-of life decision-making. Many clients as well as attorneys do not apply the same standard of care and regard to advice concerning advance directives as they provide when planning avoidance of death taxes and preservation of assets. Why would anyone pay an attorney to draft an advance directive if there are statutory forms available? Custom tailoring is always better than buying off the rack.

Karren Pope-Onwukwe is a member of the MSBA Elder Law Section Council and Chair of the Section’s Website Committee.