It is critical during this time period that if you have a loved one in the hospital, in an assisted living facility, or in a nursing home, that you have his/her advance directive. Since contact with a loved one during the pandemic may be extremely problematic, it’s important for you to already have this document, explaining your loved one’s preferences.

Locate All Advance Directives

As with all estate planning documents, you should locate all advance directives for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the newer version negates the older version. Otherwise, you will have two active advance directives that may have separate instructions. This will create confusion.

Not All Advance Directives Are Called Advance Directives

In Maryland, the advance directive has two parts to it:

1. the health care agent instructions and
2. the living will.

They normally, but not always, are part of one document called the advance directive.

The health care agent instructions should provide a HIPAA release (medical information disclosure authorization), and the living will should address the three Maryland end-of-life decisions:

1. terminal condition
2. end stage condition, and
3. persistent vegetative state.

Usually one of the biggest issues with the end-of-life choices is whether one should be tube-fed or not. That decision should be very clear in the living will portion of the advance directive.

How to Execute an Advance Directive During COVID-19

The COVID-19 pandemic makes it difficult to find witnesses for an advance directive. There are several restrictions as to who can serve as a witness for a Maryland advance directive. In Maryland, the health care agent cannot be a witness. Also, at least one of the witnesses cannot knowingly inherit anything from the declarant.

Governor Hogan issued emergency rules in the beginning of 2020 to implement remote witnessing for advance directives.  Those rules are now expired.   This creates unique issues for clients in assisted living and/or nursing homes.  Our office normally works with the assisted living or nursing home regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing an advance directive. Please call us at (410) 296-8166 x292.