Mutual Wills or Last Will and Testaments for Man and Woman living together, not Married with Minor Children
Note: This summary is not intended to be an
all-inclusive summary of the law of wills in Maine, but does contain basic
and other provisions. Handwritten wills, or wills where the testator
cannot sign his or her name are not discussed.
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE MAINE REVISED STATUTES
ADVANCE HEALTH CARE DIRECTIVE
(18-A MRSA 5-801 through 5-804)
Selected Definitions
An advance health-care directive is an individual instruction from, or a power of attorney for health care by, an individual with capacity.
Health care is any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition.
A health-care decision is a decision made by an individual with capacity or by the individual's agent, guardian or surrogate, regarding the individual's health care, including:
Selection and discharge of health-care providers and institutions;
Approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and
Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care, including life sustaining treatment.
A power of attorney for health care is the designation of an agent with capacity to make health-care decisions for the individual granting the power.
A surrogate is an individual with capacity, other than a patient's agent or guardian, authorized under this Part to make health care decisions as provided in section 5-805.
Life sustaining treatment is any medical procedure or intervention that, when administered to a person without capacity and in either a terminal condition or a persistent vegetative state, will serve only to prolong the process of dying. Life sustaining treatment may include artificially administered nutrition and hydration, which is the provision of nutrients and liquids through the use of tubes, intravenous procedures or similar medical interventions.
A persistent vegetative state is a state that occurs after coma in which the patient totally lacks higher cortical and cognitive function, but maintains vegetative brain stem processes, with no realistic possibility of recovery, as diagnosed in accordance with acceptable medical standards.
A terminal condition is an incurable and irreversible condition that, without the administration of life sustaining treatment, in the opinion of the primary physician, will result in death within a relatively short time.
The Directive
An adult or emancipated minor with capacity may execute a power of attorney for health care and may authorize the agent to make any health-care decision that the principal could have made while having capacity.
The directive must be in writing and signed by the principal and 2 witnesses.
Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.
Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction, the authority of an agent or the validity of an advance health-care directive must be made by the primary physician or by a court of competent jurisdiction. If an individual has included a directive authorizing mental health treatment in an advance health-care directive, a determination that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction, the authority of an agent or the validity of an advance health-care directive must be made by by a person qualified to conduct an examination pursuant to Title 34-B, section 3863.
A written advance health-care directive may include the individual's nomination of a guardian of the person.
Revocation
An individual with capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health-care provider.
An individual with capacity may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.
An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict.
Form
The statutory form is optional.
A copy of a written advance health-care directive, revocation of an advance health-care directive or designation or disqualification of a surrogate has the same effect as the original.
