What Happens Without an Advance Directive in Maine?

Someone Will Make Decisions for You — the Question Is Who

If you become incapacitated in Maine without an advance health care directive, medical decisions do not simply stop. The Uniform Health Care Decisions Act (18-C M.R.S. Section 5-806) establishes a strict priority hierarchy of people who can step in as surrogate decision-makers.

Your primary physician is responsible for locating the highest-available person on this list. The surrogate does not need a court appointment — the statute grants them authority automatically.

Maine's Surrogate Decision-Maker Hierarchy

When no advance directive exists and no healthcare agent has been designated, the physician must identify a surrogate in this exact order:

1. Spouse (unless legally separated)
2. Adult partner who shares an emotional, physical, and financial relationship similar to a spouse
3. Adult child
4. Parent
5. Adult sibling
6. Adult grandchild
7. Adult niece or nephew (related by blood or adoption)
8. Adult aunt or uncle (related by blood or adoption)
9. Any adult relative related by blood or adoption who is familiar with the patient's values
10. Any adult who has shown special concern for the patient and is familiar with their personal values

The surrogate has the same authority the patient would have — including the right to consent to or refuse treatment, and to withdraw life-sustaining treatment if the patient is terminally ill or in a persistent vegetative state.

The Class Deadlock Problem

Here is where the system breaks down. Under 18-C M.R.S. Section 5-806(5), if multiple members of the same priority tier assume authority and disagree about a medical decision, and the disagreement divides the class evenly, that entire class — and everyone below them on the list — is legally disqualified from making the decision.

Example: You have four adult children. Two want to continue aggressive treatment. Two want to transition to comfort care. The vote is 2-2. Under Maine law, all four children lose their decision-making authority, and so do your siblings, grandchildren, nieces, nephews — everyone.

At that point, the healthcare provider may refer the dispute to a neutral mediator or petition the county Probate Court for emergency appointment of an independent guardian. The guardian is a stranger — someone appointed by a judge to make medical decisions for a person they have never met.

This process is slow, expensive, and emotionally devastating for a family that is already in crisis.

Can Family Override a Living Will in Maine?

If you do have an advance directive, your family generally cannot override your documented wishes. Your healthcare agent is legally bound to follow your individual instructions.

However, there are limited circumstances where conflict arises:

• A family member can challenge the directive's validity — arguing you lacked capacity when you signed, were coerced, or that the document was not properly witnessed
• If your agent's decision appears inconsistent with your documented wishes, a healthcare provider can refuse to follow the agent's instruction and seek clarification or court intervention
• If no one knows the directive exists, the surrogate hierarchy activates by default — your agent's authority is only effective if the treating facility knows about the document

This last point is why distribution matters so much. An advance directive locked in a desk drawer while your family argues in the ICU waiting room is functionally equivalent to having no directive at all.

What the Surrogate Cannot Do

Even without a formal directive, surrogate decision-makers face limits:

• A surrogate cannot authorize medical interventions that the patient is known to have opposed during periods of capacity
• A surrogate should make decisions based on the patient's known values and preferences, not their own beliefs about what is "best"
• Certain decisions — like participation in medical research or sterilization — may require court authorization even with surrogate consent

The Real Cost of Not Planning

Court-appointed guardianship proceedings in Maine involve filing fees, attorney costs (often $350+ per hour for elder law specialists), potential expert evaluations, and weeks or months of delay. During this time, medical decisions may default to the most conservative, intervention-heavy options because providers face liability for withholding treatment without clear authorization.

The emotional cost is harder to quantify. Family members who were forced into opposing positions during a guardianship dispute often describe lasting damage to their relationships.

How an Advance Directive Prevents All of This

Naming a healthcare agent eliminates the surrogate hierarchy entirely. Your agent — not a prioritized list of relatives — makes the call. Documenting your treatment preferences eliminates the guesswork. And executing the document properly (two witnesses, handwritten signature) makes it legally binding.

The Maine Advance Directive & Living Will Kit walks you through the agent designation, treatment preferences, and signing ceremony, so your family never ends up in a courtroom during a medical crisis.

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