What Happens Without an Advance Directive in Maryland

Maryland Picks Your Decision-Maker for You

When you become incapacitated without a valid advance directive, you lose the ability to choose who makes your medical decisions. Maryland law fills the gap with a rigid statutory hierarchy — a priority list that determines who speaks for you based on their legal relationship, not their understanding of your values.

The surrogate decision-maker hierarchy under the Health Care Decisions Act follows this exact order:

1. Court-appointed guardian of the person — if one has been formally appointed
2. Spouse or registered domestic partner — pending divorce, separation agreements, or protective orders strip this priority
3. Adult child — all adult children share equal authority
4. Parent
5. Adult sibling — all adult siblings share equal authority
6. Friend or other relative — must submit a signed affidavit to the healthcare provider demonstrating regular contact, familiarity with the patient's beliefs, values, and religious convictions

The Equal-Authority Problem

The most dangerous feature of this hierarchy is that surrogates within the same class have equal authority. If you have three adult children, all three share the same decision-making power. Maryland law does not designate the oldest child, the closest child, or the most medically informed child as the primary decision-maker.

When equal-rank surrogates agree, the system works. When they disagree — and in life-or-death medical decisions, disagreement is common — the system freezes.

What Happens When Surrogates Disagree

Under Maryland law, if surrogates of equal rank cannot agree on whether to withhold or withdraw life-sustaining treatment, physicians may not act. Treatment continues by default until the disagreement is resolved.

Resolution follows two paths:

Hospital ethics committee. Every Maryland hospital and nursing home is required to maintain a Patient Care Advisory Committee. When surrogates disagree, the matter is referred to this committee, which provides confidential, advisory recommendations. Physicians who follow the committee's recommendations receive statutory immunity from civil and criminal liability.

Circuit court guardianship. If the ethics committee cannot resolve the dispute, the surrogates must file a petition in circuit court to appoint a legal guardian of the person. This process is public, expensive, emotionally draining, and can take weeks — during which your medical treatment remains in limbo.

Unmarried Partners Are Invisible

If you are in an unmarried relationship and have not executed an advance directive, your partner is legally invisible under the surrogate hierarchy. They fall below your biological parents, adult children, and siblings in priority — even if they have lived with you for decades and know your medical preferences better than anyone.

The only exception: registered domestic partners receive the same priority as spouses. But domestic partnership registration is not automatic — it requires affirmative registration, and many long-term partners have not completed this step.

Without an advance directive naming your partner as your healthcare agent, a biological family member you have not spoken to in years could have more legal authority over your medical care than the person who shares your home.

Full Resuscitation Is the Default

Without a MOLST (Medical Orders for Life-Sustaining Treatment) or advance directive, EMS clinicians arriving at an emergency must perform full restorative interventions. This means CPR, intubation, mechanical ventilation — the full protocol. Your previously expressed verbal wishes, no matter how clearly stated to family members, carry no legal weight with emergency medical services.

The Cost of Not Planning

The surrogate system does not just risk the wrong person making decisions. It risks no decision being made at all. Clinical paralysis — where physicians cannot withdraw treatment because surrogates disagree — extends hospital stays, increases suffering, and generates medical costs that drain the estate.

A Maryland advance directive eliminates every one of these risks. It names one clear decision-maker, removes the equal-authority problem, includes your partner in the conversation regardless of legal status, and provides the specific treatment instructions that prevent deadlock.

The Maryland Advance Directive & Living Will Kit walks you through naming a healthcare agent, structuring your treatment preferences, and preparing the MOLST that EMS will actually follow — replacing the state's default hierarchy with your own informed choices.

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