New Law Untangles Health Care and Divorce


As of October 1, 2017, legislation that will likely change the drafting of separation and marital settlement agreements is in effect. This new law, is entitled Health Care Decisions Act – Advance Directives and Surrogate Decision Making – Disqualified Individuals. The new law imposes prohibitions on specific individuals from serving as health care agents or surrogate health care decision makers for their spouses. The individuals who would be disqualified are those who – in relation to the patient – are subjects of protective orders. But this new law goes beyond cases involving domestic violence. The new law also disqualifies a spouse when he or she has signed a separation agreement with the patient or when an application for divorce has been filed by either the patient or the spouse of the patient.

The impact of this new law may only affect a small number of divorcing couples, but it is nevertheless an important change. While it is not a universal phenomenon, in the event of a serious medical crisis, most people who are separating or divorcing would prefer to have someone other than an estranged spouse serve as his or her health care agent or surrogate health care decision maker. Before this new law went into effect, a spouse was deemed to be automatically the first in line as a “surrogate decision maker” for health care matters if the patient had not previously executed an advance directive.

The new law may permit a spouse to serve as a health care agent following the execution of a separation agreement or filing or an application for divorce, only if the patient has otherwise indicated an intent to have his or her spouse serve as his or her health care agent. Typically, this intent is shown by creating a new advance health care directive. The simple status of being legally married would not suffice when spouses are divorcing to permit a divorcing spouse to serve either as a health care agent or surrogate decision maker.

In addition to avoiding potentially messy problems for separating and divorcing couples, the new law focuses on the importance of drafting advance directives. Articulating one’s wishes before experiencing a medical crisis is always a good idea, especially when in the midst of a major transition such as a separation or divorce.

The Law Offices of Cynthia Lifson are located in Columbia, Annapolis, and Towson, Maryland.

This article does not constitute legal advice and should not be relied on without discussion of your specific situation with an attorney.