2017 Maryland Legislative Update – Advance Directives, Domestic Violence & Divorce

This Session saw an unusual blending of family/domestic violence law and estates and trust law in SB562/HB498. Specifically, this bill revises Health General Article §§5-602 and 5-605, expanding the categories of persons disqualified from serving as health care agents when a person is unable to make medical decisions on his/her own.

Effective October 1, 2017, a person against whom an interim, temporary, or final protective order is obtained (the respondent) will not be allowed to serve as a health care agent, making medical decisions on behalf of, a person eligible for relief. This supersedes an existing health care advance directive designation and eliminates the respondent from serving as a default health care agent if the designated agent is unavailable or there is no health care directive. The disqualification applies automatically, without the need to revoke the health care directive or indicate in any other writing.

Likewise and also effective October 1, 2017, spouses who file for divorce or have signed a settlement agreement will no longer be eligible to serve as one another’s health care agents if designated in a health care directive or as a substituted agent if there is no health care directive or the agent is unavailable. The disqualification applies automatically as well. However and limited to divorce and separation agreements, there are two exceptions: 1) if the declarant (so, the person in need of medical care) is able to make a decision about the spouse continuing to serve as the agent; or 2) the declarant otherwise indicates an intention for the spouse to serve as the agent.

The statute also imposes a duty to inform medical providers and facilities upon a person who obtains information that disqualifies an individual from serving as a health care agent.

Supporters at the bill hearings pointed to the need to protect victims of domestic violence and estranged spouses from health care decision makers who have conflicting agendas. This evokes Estates & Trusts Article §4-105(4), pursuant to which an absolute divorce or annulment automatically terminates existing last will and testament provisions in favor of the other spouse, unless the last will and testament or the decree of divorce or annulment states otherwise.

There has been like interest, which has yet to result in an proposed bill, in automatically terminating certain retirement beneficiary designations of a former spouse upon divorce.

It will be interesting to see how this law unfolds.

Specifically, not all divorce agreements are “separation agreements”. Some are “settlement agreements” because the spouses cannot afford to separation or choose to live under the same roof until a home is sold or lease expires before separating. This is especially so for couples who pursue the mutual consent ground for divorce, which does not require a separation.

Additionally, the automatic disqualification occurs if an application for divorce has been filed. First, this does not apply to requests for annulment (a difference from Estates & Trusts §4-105(4)). Second, filing is not the same as the granting of a divorce. One can file for divorce and never serve the other party. One can file for divorce, reconcile, and dismiss the complaint. The new law does not revive the right of reconciled spouses to serve as health care agents if divorce is filed and later dismissed.

Likewise, the disqualification applies in domestic violence matters when the persons are subjects of an interim, temporary, or final protective order. Regardless of whether the parties reconcile and dismiss or vacate the protective order. And, regardless of whether the order has since expired. Because there are no exceptions, it may be that once a protective order is obtained a respondent is forever barred from serving as a health care agent.

These concerns may put form over substance. The practice pointer for people who obtain a protective order or file for divorce and later reconcile is to sign a new health care directive and waiver of the disqualification provisions.

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