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Wills and Estates Blog

The Do Not Resuscitate (DNR) Order Has Been Replaced With the New and Improved MOLST Form in Maryland

Thursday, September 22, 2016

When it comes to protecting your loved ones, we MOLST Blog Pictureencourage you to have an Advance Directive (See Get an Advance Directive: Don’t Be a Headline; Should I get an Advance Directive, a Living Will or a Health Care Power of Attorney?). Having an Advance Directive is effective in explaining your wishes and giving someone the authority to act on your behalf. To be absolutely sure your wishes are followed, however, you should consider completing a Maryland Orders for Life-Sustaining Treatment (MOLST) form.

The MOLST form is a medical order form that contains orders about cardiopulmonary resuscitation and other life-sustaining treatments. Unlike an Advance Directive, the MOLST form is more specific and contains a more in-depth look into the various medical procedures that could be used during cardiopulmonary arrest and other emergency situations. For example, in an Advance Directive you may include generally your wishes with regard to artificial ventilation or artificially administered fluids and nutrition, but most Advance Directives do not include your wishes with regard to blood transfusions, hospital transfers, medical workups or dialysis situations. The details of the MOLST form provide the patient with a plethora of medical decisions that must be taken into consideration during an emergency situation, many of which are not taken into consideration when drafting an Advance Directive.

The MOLST form acts as added protection to correct any limitations an Advance Directive may have. For instance, if you reside in a nursing home and an emergency situation presents itself, your healthcare agent is not present. If a decision must be made to resuscitate you and the personnel must act vigilantly, they would probably perform CPR. But if you wished that CPR not be performed then your wish may not be followed. The MOLST form prevents this situation and stands in place of your Advance Directive, ensuring that your wishes are followed.

A MOLST form is completed by a patient or health care agent (if his/her decisions are consistent with a known advance directive of the patient) when the patient is incapable of making an informed decision, and is signed by a physician. Once signed, it becomes a valid medical order and all medical facilities must comply with it. More specifically, nursing homes, assisted living facilities, hospices, home health agencies, kidney dialysis centers (upon new admission), and hospitals (upon discharge of the patient to another medical facility) must complete a MOLST form for a patient. Also, in situations where the patient is hospitalized or institutionalized, the MOLST form must follow the patient.

When planning for the future, it is beneficial to consider completing a MOLST form. You can attempt to plan every aspect of your life, however, as we all know things can happen unexpectedly. Let the medical providers ensure your wishes are followed and take the burden off your health care agent of having to be available at all times in the case of an emergency.

Death of a Loved One: Practical and Legal Guidance

Thursday, September 22, 2016

Dealing with the death of a loved one both before and after death are the two most difficult situations in our lives. In addition to the emotional toll, there are also innumerable details, practical and legal, surrounding a loved one's death. Most people are not aware of the steps that need to be taken in preparation or after death. And even if they are aware, most people have a difficult time focusing on these tasks in such a fragile emotional state. In an attempt to help during this difficult time I wrote a manual of sorts. Death of a Loved One contains checklists to assist both before and after death. You can download a free copy of the booklet here. 

Preparing For the Death of a Loved One: 7 Practical Recommendations

Thursday, September 22, 2016

This is not an easy time and, emotionally, there is not much that your lawyer can do to help. What we can to is to assist you in understanding some of the practical issues involved. Below we describe seven recommendations of things to do before your loved one passes. At a minimum, this list will provide some guidance during this trying time and, at best, maybe it might even free up some extra time to spend with your loved one.

1. Notify Family & Friends

Your loved one’s family and friends will want to know what is happening. If possible discuss notification with your loved one. If you feel comfortable, consider preparing an email list. You can use the list to keep family and friends notified of changes in condition. The list can be used after death as well as a means to provide information about funeral services. This may not be the most personal, but it is the most efficient method to keep a larger number of people informed.

2. Locate Legal Documents

Speak with your loved one about the physical location of their legal documents. If your loved one does not have a Will, Advance Directive or Power of Attorney and they still have the capacity to execute these documents, consult with an attorney about having the documents drafted.

Will. After your loved one’s death you will need the original Will. Copies are not accepted by the Register of Wills. Thus it is of paramount importance to know its location and have access to the original Will. If it’s in a safe, you need the combination. If it’s in a safe deposit box, you will need to be a joint owner of the safe deposit box to have access to it after death.

Advance Directive. The Advance Directive appoints a health care agent to make health care decisions. This document also provides instructions regarding your loved one’s wishes regarding end of life medical care. If your loved one loses consciousness (or the legal capacity to make decisions), this document will allow you to consult with your loved one’s physicians and make decisions. The document will indicate your loved one’s wishes regarding what decisions to make in end of life situations. For instance, should artificial respiration be attempted when death is imminent?

Power of Attorney. The Power of Attorney allows your loved one’s agent to handle financial affairs if they become incapacitated. You may need this document to access your loved one’s bank accounts, pay for medical care, maintain the mortgage, and keep the utilities on in the house.

3. Be Certain Everyone Understands Your Loved One’s Wishes

You need to speak with your loved one about their wishes. Once you understand their wishes, it is your job to make sure everyone involved also understands.

Pre Death Wishes. Discuss with your loved one what their wishes are concerning end of life medical decisions. Hopefully this information is included in an Advance Directive. Once understood, the decisions need to be communicated to the medical providers. In Maryland, to make sure that your loved ones wishes are honored, you need your loved one’s health care provider to complete a Medical Orders for Life-Sustaining Treatment (MOLST) form. The completed MOLST form should remain with your loved one or his or her agent and a copy should be on file with the medical facility where your loved one resides. This is an important step as an advance directive alone will not stop emergency personnel from attempting to resuscitate.

Post Death Wishes. Make sure you understand what your loved one’s wishes are upon death. Do they want their organs donated? Do they want to be cremated or buried? What type of funeral service do they want? Do they want a headstone? Do they want their ashes scattered someplace?

4. Obtain Identifying Information

Before it is too late, obtain information that may be lost when your loved one passes. It is important to identify the institutions and account numbers for all of their financial accounts. You need to know if they have life insurance and the locations of the policies. In the digital age, user names and passwords are also very important. There are a variety of reasons you may need to access their email, Facebook, or other online services after their death. You may use their email or online services to notify family and friends about their death and/or funeral services. Or you may want to be able to collect pictures or videos posted on sites such as Facebook to use in a memorial service.

5. Make Funeral Arrangements

Start by contacting a reputable funeral home or crematorium. They should be able to assist you in all of the details. Planning ahead may seem morbid but many of the questions to be decided will be much easier with your loved one’s input. Some of the decisions to be made are:

  • location of final resting place 
  • determining how the body will be transported 
  • whether jewelry will remain or be removed from the body 
  • selection of a casket or urn 
  • selecting a grave marker and inscription 
  • selecting the deceased’s clothing 
  • selecting items to be placed in casket 
  • location and type of service 
  • types of flowers for the service 
  • identities of pall bearers 
  • identify of charity or organizations for donations 
  • selecting a photograph for display 
  • music selection 
  • selecting scripture or literature for the service 
  • selecting a person to deliver the eulogy.

6. Contact Professionals

Contact your loved one’s professionals: accountants, financial planners and lawyers. They may have valuable advice both before and after the death of your loved one.

7. Start Preparing Obituary

Although it may sound grim, start preparing an obituary. If you wait until your loved one passes, you may discover that you do not have the necessary information to write an obituary. Planning the obituary ahead of time can be cathartic and you may even learn something you didn’t know.

Get Your Advance Directive: Don’t Be A Headline

Tuesday, September 20, 2016

In giving estate planning seminars, I am always trying to impress upon my audience the importance of planning while young and healthy. One of many reasons to plan sooner rather than later is to avoid being the subject of a news story like the one ran by the Associated Press on October 31, 2011: “Maryland Feeding-Tube Case Pits Wife Against Mother.” My job as an estate planning attorney is to prevent tragic headlines like this.

Mr. Sanger was a 55 year old computer technician residing in Frederick County, Maryland. Mr. Sanger did not have an Advance Directive. In July of this year, he suffered a heart attack which resulted in severe brain damage. After three months, Mr. Sanger’s wife consented to have her husband’s feeding tube removed. Mr. Sanger’s mother and brother disagreed and went to the Frederick County Circuit Court to have the feeding tube restored. On October 20, 2011 they obtained a temporary order to have the feeding tube reinserted. The Court was scheduled to hear arguments on whether the tube should be permanently restored on November 2, 2011. Mr. Sanger died prior to the hearing.

A valid Advance Directive could have avoided this type of family strife and the ensuing media frenzy. First, an Advance Directive would have identified the party legally responsible for making the decision – Mr. Sanger’s health care agent. Mr. Sanger could have designated his wife (or any other person) as his agent, with the legal power to make the decision. Second, in the Advance Directive, Mr. Sanger could have indicated as to whether he wished to remain on a feeding tube in an end-of-life situation. No doubt this would have made Mrs. Sanger’s decision to remove the feeding tube easier. It also would have provided clear guidance to all the family members as to what Mr. Sanger would have wanted. Theoretically, family members could have still sought court intervention. But with Mr. Sanger having previously identified his health care agent and made his wishes clear, the outcome would have been all but determined.


Should I get an Advance Directive, a Living Will or a Health Care Power of Attorney?

Tuesday, September 20, 2016

The answer is the first one or the second one and the third one. The problem with answering the question is first and foremost one of terminology. For starters, each state calls these legal documents by different names. For instance, Maryland has an Advance Directive, Virginia has an Advance Medical Directive and the District of Columbia has a Power of Attorney for Health Care and Declaration of Living Will. In addition, as a legal community we have simply not standardized our terms. What one lawyer calls a Health Care Power of Attorney, another calls an Advance Directive. In this blog I will attempt to clear up the confusion. (At least for Maryland residents).

Before talking about each of these different documents, we need to understand what we are trying to do with them. In general, the purpose is to give someone the legal power to make medical decisions for you when you cannot. For instance, if you have just been in a serious accident and are unconscious we need someone to give the “okay” to the doctor to perform surgery. In addition to giving someone this authority, it would also be nice if these documents provide some guidance to the person as to how to make the decisions.

Health Care Power of Attorney

Recall that you can execute a Durable Power of Attorney to give legal power to someone to handle your economic affairs. (See What is a Durable Power of Attorney Anyway?). Thus, some refer to a document that gives power over medical decisions a Health Care Power of Attorney. This document appoints an agent to make medical decisions. This person will be able to receive medical information and make decisions about treatment options for you. In other words, the doctors can tell your agent what your condition is and ask your agent for permission to provide treatment.

Living Will

The Living Will indicates your personal preferences as to what type of medical treatment you want in an end-of-life situation. Do you want to be on a ventilator? Do you want pain medication even if it would shorten your remaining life? This document does not provide any information as to who can make these decisions. In my opinion, the Living Will is of seminal importance because it eases the burden on your loved ones who have to make these tough decisions. Additionally, a Living Will should eliminate disputes over what treatment should (or should not) be provided. Everyone wants to avoid the legal battle that surrounded the Terry Schiavo case.

Advance Directive

In Maryland, an Advance Directive is simply a document that contains both a Health Care Power of Attorney and a Living Will. The first part of the Advance Directive names the person (or agent) to make health care decisions for you. Treatment preferences in end-of-life situations are contained in the second part. Thus, at least in Maryland, a properly drafted Advance Directive should accomplish all of your needs.

The Do Not Resuscitate (DNR) Order Has Been Replaced With The New And Improved MOLST Form In Maryland

Friday, April 04, 2014

When it comes to protecting your loved ones, we encourage you to have an Advance Directive (See Get an Advance Directive: Don’t Be a Headline; Should I get an Advance Directive, a Living Will or a Health Care Power of Attorney?). Having an Advance Directive is effective in explaining your wishes and giving someone the authority to act on your behalf. To be absolutely sure your wishes are followed, however, you should consider completing a Maryland Orders for Life-Sustaining Treatment (MOLST) form.

The MOLST form is a medical order form that contains orders about cardiopulmonary resuscitation and other life-sustaining treatments. Unlike an Advance Directive, the MOLST form is more specific and contains a more in-depth look into the various medical procedures that could be used during cardiopulmonary arrest and other emergency situations. For example, in an Advance Directive you may include generally your wishes with regard to artificial ventilation or artificially administered fluids and nutrition, but most Advance Directives do not include your wishes with regard to blood transfusions, hospital transfers, medical workups or dialysis situations. The details of the MOLST form provide the patient with a plethora of medical decisions that must be taken into consideration during an emergency situation, many of which are not taken into consideration when drafting an Advance Directive.

The MOLST form acts as added protection to correct any limitations an Advance Directive may have.For instance, if you reside in a nursing home and an emergency situation presents itself, your healthcare agent is not present. If a decision must be made to resuscitate you and the personnel must act vigilantly, they would probably perform CPR. But if you wished that CPR not be performed then your wish may not be followed. The MOLST form prevents this situation and stands in place of your Advance Directive, ensuring that your wishes are followed.

A MOLST form is completed by a patient or health care agent (if his/her decisions are consistent with a known advance directive of the patient) when the patient is incapable of making an informed decision, and is signed by a physician. Once signed, it becomes a valid medical order and all medical facilities must comply with it. More specifically, nursing homes, assisted living facilities, hospices, home health agencies, kidney dialysis centers (upon new admission), and hospitals (upon discharge of the patient to another medical facility) must complete a MOLST form for a patient. Also, in situations where the patient is hospitalized or institutionalized, the MOLST form must follow the patient.

When planning for the future, it is beneficial to consider completing a MOLST form. You can attempt to plan every aspect of your life, however, as we all know things can happen unexpectedly.Let the medical providers ensure your wishes are followed and take the burden off your health care agent of having to be available at all times in the case of an emergency.

Nicole Slaughter

Preparing For The Death Of A Loved One: 7 Practical Recommendations

Wednesday, August 01, 2012

This is not an easy time and, emotionally, there is not much that your lawyer can do to help. What we can to is to assist you in understanding some of the practical issues involved. Below we describe seven recommendations of things to do before your loved one passes. At a minimum, this list will provide some guidance during this trying time and, at best, maybe it might even free up some extra time to spend with your loved one.

  1. Notify Family & Friends

    Your loved one’s family and friends will want to know what is happening. If possible discuss notification with your loved one. If you feel comfortable, consider preparing an email list. You can use the list to keep family and friends notified of changes in condition. The list can be used after death as well as a means to provide information about funeral services. This may not be the most personal, but it is the most efficient method to keep a larger number of people informed.

  2. Locate Legal Documents

    Speak with your loved one about the physical location of their legal documents. If your loved one does not have a Will, Advance Directive or Power of Attorney and they still have the capacity to execute these documents, consult with an attorney about having the documents drafted.

    Will. After your loved one’s death you will need the original Will. Copies are not accepted by the Register of Wills. Thus it is of paramount importance to know its location and have access to the original Will. If it’s in a safe, you need the combination. If it’s in a safe deposit box, you will need to be a joint owner of the safe deposit box to have access to it after death.

    Advance Directive. The Advance Directive appoints a health care agent to make health care decisions. This document also provides instructions regarding your loved one’s wishes regarding end of life medical care. If your loved one loses consciousness (or the legal capacity to make decisions), this document will allow you to consult with your loved one’s physicians and make decisions. The document will indicate your loved one’s wishes regarding what decisions to make in end of life situations. For instance, should artificial respiration be attempted when death is imminent?

    Power of Attorney. The Power of Attorney allows your loved one’s agent to handle financial affairs if they become incapacitated. You may need this document to access your loved one’s bank accounts, pay for medical care, maintain the mortgage, and keep the utilities on in the house.

  3. Be Certain Everyone Understands Your Loved One’s Wishes

    You need to speak with your loved one about their wishes. Once you understand their wishes, it is your job to make sure everyone involved also understands.

    Pre Death Wishes. Discuss with your loved one what their wishes are concerning end of life medical decisions. Hopefully this information is included in an Advance Directive. Once understood, the decisions need to be communicated to the medical providers. In Maryland, to make sure that your loved ones wishes are honored, you need your loved one’s health care provider to complete a Medical Orders for Life-Sustaining Treatment (MOLST) form. The completed MOLST form should remain with your loved one or his or her agent and a copy should be on file with the medical facility where your loved one resides. This is an important step as an advance directive alone will not stop emergency personnel from attempting to resuscitate.

    Post Death Wishes. Make sure you understand what your loved one’s wishes are upon death. Do they want their organs donated? Do they want to be cremated or buried? What type of funeral service do they want? Do they want a headstone? Do they want their ashes scattered someplace?

  4. Obtain Identifying Information

    Before it is too late, obtain information that may be lost when your loved one passes. It is important to identify the institutions and account numbers for all of their financial accounts. You need to know if they have life insurance and the locations of the policies. In the digital age, user names and passwords are also very important. There are a variety of reasons you may need to access their email, Facebook, or other online services after their death. You may use their email or online services to notify family and friends about their death and/or funeral services. Or you may want to be able to collect pictures or videos posted on sites such as Facebook to use in a memorial service.

  5. Make Funeral Arrangements

    Start by contacting a reputable funeral home or crematorium. They should be able to assist you in all of the details. Planning ahead may seem morbid but many of the questions to be decided will be much easier with your loved one’s input. Some of the decisions to be made are:

    • location of final resting place
    • determining how the body will be transported
    • whether jewelry will remain or be removed from the body
    • selection of a casket or urn
    • selecting a grave marker and inscription
    • selecting the deceased’s clothing
    • selecting items to be placed in casket
    • location and type of service
    • types of flowers for the service
    • identities of pall bearers
    • identify of charity or organizations for donations
    • selecting a photograph for display
    • music selection
    • selecting scripture or literature for the service
    • selecting a person to deliver the eulogy
  6. Contact Professionals

    Contact your loved one’s professionals: accountants, financial planners and lawyers. They may have valuable advice both before and after the death of your loved one.

  7. Start Preparing Obituary

    Although it may sound grim, start preparing an obituary. If you wait until your loved one passes, you may discover that you do not have the necessary information to write an obituary. Planning the obituary ahead of time can be cathartic and you may even learn something you didn’t know.

By David Galinis

Get Your Advance Directive: Don’t Be A Headline

Friday, November 18, 2011

In giving estate planning seminars, I am always trying to impress upon my audience the importance of planning while young and healthy. One of many reasons to plan sooner rather than later is to avoid being the subject of a news story like the one ran by the Associated Press on October 31, 2011: “Maryland Feeding-Tube Case Pits Wife Against Mother.” My job as an estate planning attorney is to prevent tragic headlines like this.

Mr. Sanger was a 55 year old computer technician residing in Frederick County, Maryland. Mr. Sanger did not have an Advance Directive. In July of this year, he suffered a heart attack which resulted in severe brain damage. After three months, Mr. Sanger’s wife consented to have her husband’s feeding tube removed. Mr. Sanger’s mother and brother disagreed and went to the Frederick County Circuit Court to have the feeding tube restored. On October 20, 2011 they obtained a temporary order to have the feeding tube reinserted. The Court was scheduled to hear arguments on whether the tube should be permanently restored on November 2, 2011. Mr. Sanger died prior to the hearing.

A valid Advance Directive could have avoided this type of family strife and the ensuing media frenzy. First, an Advance Directive would have identified the party legally responsible for making the decision – Mr. Sanger’s health care agent. Mr. Sanger could have designated his wife (or any other person) as his agent, with the legal power to make the decision. Second, in the Advance Directive, Mr. Sanger could have indicated as to whether he wished to remain on a feeding tube in an end-of-life situation. No doubt this would have made Mrs. Sanger’s decision to remove the feeding tube easier. It also would have provided clear guidance to all the family members as to what Mr. Sanger would have wanted. Theoretically, family members could have still sought court intervention. But with Mr. Sanger having previously identified his health care agent and made his wishes clear, the outcome would have been all but determined.

By David Galinis

Should I Get An Advance Directive, A Living Will Or A Health Care Power Of Attorney?

Thursday, October 13, 2011

The answer is the first one or the second one and the third one. The problem with answering the question is first and foremost one of terminology. For starters, each state calls these legal documents by different names. For instance, Maryland has an Advance Directive, Virginia has an Advance Medical Directive and the District of Columbia has a Power of Attorney for Health Care and Declaration of Living Will. In addition, as a legal community we have simply not standardized our terms. What one lawyer calls a Health Care Power of Attorney, another calls an Advance Directive. In this blog I will attempt to clear up the confusion. (At least for Maryland residents).

Before talking about each of these different documents, we need to understand what we are trying to do with them. In general, the purpose is to give someone the legal power to make medical decisions for you when you cannot. For instance, if you have just been in a serious accident and are unconscious we need someone to give the “okay” to the doctor to perform surgery. In addition to giving someone this authority, it would also be nice if these documents provide some guidance to the person as to how to make the decisions.

Health Care Power of Attorney

Recall that you can execute a Durable Power of Attorney to give legal power to someone to handle your economic affairs. (See What is a Durable Power of Attorney Anyway?). Thus, some refer to a document that gives power over medical decisions a Health Care Power of Attorney. This document appoints an agent to make medical decisions. This person will be able to receive medical information and make decisions about treatment options for you. In other words, the doctors can tell your agent what your condition is and ask your agent for permission to provide treatment.

Living Will

The Living Will indicates your personal preferences as to what type of medical treatment you want in an end-of-life situation. Do you want to be on a ventilator? Do you want pain medication even if it would shorten your remaining life? This document does not provide any information as to who can make these decisions. In my opinion, the Living Will is of seminal importance because it eases the burden on your loved ones who have to make these tough decisions. Additionally, a Living Will should eliminate disputes over what treatment should (or should not) be provided. Everyone wants to avoid the legal battle that surrounded the Terry Schiavo case.

Advance Directive

In Maryland, an Advance Directive is simply a document that contains both a Health Care Power of Attorney and a Living Will. The first part of the Advance Directive names the person (or agent) to make health care decisions for you. Treatment preferences in end-of-life situations are contained in the second part. Thus, at least in Maryland, a properly drafted Advance Directive should accomplish all of your needs.

By David Galinis

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