Default Health-Care Surrogate Priority in Maryland

At a glance

Requirements one by one

When the default route opens

The decision is treatment-specific. Section 5-601(o) includes inability to understand or weigh a proposed treatment or to communicate a decision, but preserves communication through other means or support. Under § 5-606(a), the law requires a written certification after personal examination by the attending physician and a second physician or nurse practitioner; one must have examined the patient within two hours. The second certification is unnecessary if the patient is unconscious or cannot communicate by any means. The § 5-605(a)(2) ladder opens when there is no appointed agent or that agent is unavailable.

Care and priority

Section 5-605(a)(2) authorizes decisions about health care without limiting the ladder to a named facility. An appointed agent takes priority under § 5-602(b)(4); within the default ladder, an appointed guardian comes first, followed by the spouse or domestic partner, adult child, parent, adult sibling, and qualifying friend or other relative. The distinction between hospital and other care becomes important when people of equal rank disagree.

Friend or other relative

Under § 5-605(a)(3), the last class requires a competent individual to give the attending physician an affidavit stating the relationship and specific facts showing regular contact sufficient to know the patient's activities, health, and beliefs. The physician places it in the medical record under subsection (a)(5).

Who is available and eligible

Section 5-605(a)(1) treats a person as unavailable after reasonable inquiry fails to identify or locate them, or when they do not respond in time for the patient's needs, lack capacity, or decline to decide. Subsection (a)(4) excludes someone subject to a qualifying protective order and a spouse after a separation agreement or divorce filing. A lower class may be consulted only when everyone in the higher class is unavailable.

Decision limits

The surrogate follows the patient's wishes, or the patient's best interest if those wishes are unknown or unclear (§ 5-605(c)(1)). Subsection (d) bars surrogate authorization of sterilization and treatment for a mental disorder. Before life-sustaining procedures can be withheld or withdrawn on a surrogate's authorization, § 5-606(b) requires the specified terminal, end-stage, or persistent-vegetative-state certifications. The decision may not rest on longstanding disability or economic disadvantage (§ 5-605(c)(3)).

Disagreement and court route

For equal-rank disagreement in a hospital or related institution, § 5-605(b)(1) directs referral to the patient care advisory committee. Outside that setting, subsection (b)(2) bars withholding or withdrawing life-sustaining procedures without agreement of everyone in the class. Under § 5-612(b), specified family members or a qualified friend or relative may ask a court to enjoin an unauthorized treatment decision. If a guardian is needed, Estates and Trusts § 13-705(a)–(b) sets the court appointment threshold, and § 13-705(f) requires an expedited ruling for medical-treatment petitions.

What trips people up

An adult child does not automatically outrank an available domestic partner. Under § 5-605(a)(2), the domestic partner shares the spouse's higher class, and the child class is reached only if everyone above it is unavailable.

The same-rank rule is tied to the setting and decision. Section 5-605(b) sends hospital disputes to a committee; it does not establish a general majority vote. Outside a hospital, the express agreement condition concerns withholding or withdrawing life-sustaining procedures.

Common questions

Can a patient who cannot speak still make the decision? Yes, if the patient can make and communicate an informed choice by another means or with support; § 5-601(o)(2) says that ability alone does not make the patient incapable.

Can a surrogate make a separate feeding-tube decision? Under § 5-611(e)(1), a surrogate may make a separate decision about nutrients and fluids given artificially, subject to the Act's other limits. Subsection (e)(2) does not authorize action when the provider knows the patient has expressed disagreement.

Must the physician keep a close friend's affidavit? Yes. Section 5-605(a)(5) requires the attending physician to include it in the medical record.

Statutes and sources

The verbatim excerpts, official section links, and access dates are recorded in the source fields above.