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Advance Directive in Maine: Health Care Power of Attorney, Witnesses and the Form
Maine's advance health care directive can name a health care agent, give treatment instructions, or both. The agent part needs two witnesses who sign in person, and the statute prints an optional form. Here is how it works under 18-C M.R.S. Part 8.
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What to know
- A Maine power of attorney for health care must be in writing and signed by your parent and two witnesses, in person; the statute doesn't require a notary (18-C M.R.S. § 5-803).
- Unless the document says otherwise, the agent's authority starts only when your parent is determined to lack capacity, and it stops if they recover.
- Your parent can revoke the agent's designation only by a signed writing or by personally telling the supervising health care provider.
- Without a directive, Maine law sets an order of family members who can act as surrogate, starting with the spouse (§ 5-806).
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
An advance directive in Maine, called an advance health care directive, is "an individual instruction from, or a power of attorney for health care by, an individual with capacity." Under 18-C M.R.S. § 5-803, the power of attorney for health care "must be in writing and signed by the principal and 2 witnesses," and "signatures of the principal and witnesses must be made in person and not by electronic means."
What documents does Maine use?
Maine uses one document, the advance health care directive, which can contain a power of attorney for health care, individual instructions, or both. The law is the Uniform Health Care Decisions Act, 18-C M.R.S. §§ 5-801 to 5-817:
| Piece | What it does | Signing rule |
|---|---|---|
| Power of attorney for health care | Names an agent to make health care decisions | In writing, signed by your parent and two witnesses, in person (§ 5-803(2)) |
| Individual instruction | Your parent's own direction about their health care, such as end-of-life choices | May be oral or written; an oral one counts only if made to a health care provider or someone eligible to be surrogate (§ 5-803(1)) |
Maine's Law and Legislative Reference Library, quoting a legal aid handbook, notes that "Advance directives are sometimes called Living Wills or Durable Health Care Powers of Attorney." A financial power of attorney is separate and doesn't cover health care; see our Maine power of attorney guide. For the general picture, see power of attorney vs. advance directive.
How do you sign a Maine advance directive?
Your parent signs the power of attorney for health care, and two witnesses sign too, all in person. The optional statutory form tells your parent: "After completing this form, sign and date the form at the end. You must have 2 other individuals sign as witnesses."
Section 5-803 doesn't list who can't witness. An older advance directive form hosted by the state's Office of Aging and Disability Services, revised in 2008, tells signers, "Your agent cannot sign as a witness," and "You do not need to have a Notary Public sign your Advance Directive form to make it legal in Maine."
There is one exception to in-person signing. For a patient in a hospital or residential health care facility who is in infection isolation, § 5-803-A allows the document to be signed at the patient's direction and witnessed using two-way audiovisual technology.
Who can't be the health care agent?
Under § 5-803(2), "Unless related to the principal by blood, marriage or adoption, an agent may not be an owner, operator or employee of a residential long-term health care institution at which the principal is receiving care." The agent must be an individual with capacity. Family members can serve.
The agent's decisions are effective without court approval, and "Absent a court order to the contrary, a health care decision of an agent takes precedence over that of a guardian" (§ 5-807). The agent has the same rights as your parent to see and share medical records. One limit: an agent can't consent to admission to a mental health institution unless the written directive expressly allows it.
When does the agent start making decisions?
Unless the document says otherwise, the agent's authority "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" (§ 5-803(3)). That determination is made by the primary physician or a court.
Your parent can choose to start it sooner. The statutory form says the agent's authority begins when the primary physician determines your parent can't make their own decisions, "unless I mark the following box." Marking it means "my agent's authority to make health care decisions for me takes effect immediately."
The agent follows your parent's instructions and known wishes; otherwise, the agent decides based on your parent's best interest, considering their personal values.
Where do you get a Maine advance directive form?
The statute prints one. Under § 5-805, "The following form may, but need not, be used to create an advance health care directive." It has four parts: a power of attorney for health care, instructions for health care, organ donation, and naming a primary physician. "You are free to use a different form."
In the instructions part, your parent can choose a "Choice Not To Prolong Life" or a "Choice To Prolong Life," say how artificial nutrition and hydration should be handled, and write other wishes. Unless they say otherwise, the form directs that pain relief "be provided at all times, even if it hastens my death."
The form asks your parent to give copies "to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care and to any health care agents you have named." A copy has the same effect as the original.
What happens if your parent has no advance directive?
A family member or other surrogate from a statutory priority list, starting with the spouse, can make health care decisions. Under § 5-806, when the primary physician determines your parent lacks capacity and there's no agent or guardian, a surrogate can decide. In descending order of priority, the first reasonably available of:
- the spouse, unless legally separated;
- an adult who shares a relationship with your parent similar to that of a spouse;
- an adult child;
- a parent;
- an adult brother or sister;
- an adult grandchild;
- an adult niece or nephew, then an adult aunt or uncle;
- any adult relative familiar with your parent's personal values.
If no one on the list is available, "an adult who has exhibited special concern for the patient" and knows their values can act. A surrogate "may not deny surgery, procedures or other interventions that are lifesaving and medically necessary," and decisions to withhold or withdraw life-sustaining treatment are limited to a terminal condition or persistent vegetative state.
If members of the same class disagree, the provider may follow the majority of the class with priority; "If the class is evenly divided," that class and everyone below it are disqualified. While your parent has capacity, they can disqualify anyone, including a family member, from serving as surrogate. See conservatorship and guardianship for when a court gets involved.
How do you revoke a Maine advance directive?
Your parent can revoke the agent's designation by a signed writing or by personally telling the supervising provider, and can revoke instructions in any way that shows the intent. The rules by part:
- Agent designation. Your parent can revoke it "only by a signed writing or by personally informing the supervising health care provider" (§ 5-804).
- Everything else. Instructions can be revoked "at any time and in any manner that communicates an intent to revoke."
- Divorce. A decree of annulment, divorce, dissolution or legal separation revokes the designation of a spouse as agent, unless the decree or document says otherwise.
A later directive that conflicts with an earlier one revokes the earlier one to the extent of the conflict.
What about POLST?
Maine EMS publishes the Maine POLST form, a portable medical order for people with a serious life-limiting condition, which may include advanced frailty. The form says, "This is a medical order, not an advance directive," and "Having a POLST form is always voluntary." A health care provider signs it after a conversation with your parent or their representative.
Frequently asked questions
Does an advance directive need to be notarized in Maine?
No. Under 18-C M.R.S. § 5-803, a power of attorney for health care must be in writing and signed by your parent and two witnesses, in person. The statute doesn't require a notary. The state's older form notes that notarizing isn't needed to make the form legal in Maine.
Who can witness an advance directive in Maine?
Section 5-803 requires two witnesses who sign in person but doesn't list who is disqualified. The older advance directive form hosted by the state's aging and disability office tells signers that the agent can't sign as a witness, so choosing two adults other than the agent avoids that question.
Where can I get a Maine advance directive form?
The optional form is printed in 18-C M.R.S. § 5-805, on the Maine Legislature's website, and using it isn't required. It covers a health care agent, treatment instructions, organ donation and a primary physician. The state's aging and disability office also hosts an older 2008 form that predates the current statute.
Who makes medical decisions in Maine if there's no advance directive?
A surrogate, chosen by the order in § 5-806: the spouse, then a spouse-like partner, an adult child, a parent, an adult sibling, an adult grandchild, a niece or nephew, an aunt or uncle, then another adult relative. A surrogate can't refuse lifesaving, medically necessary care, and an evenly divided class is disqualified.
Is an advance directive from another state valid in Maine?
Yes. Under § 5-803(8), an advance health care directive is valid in Maine if it complies with Maine's law, regardless of when or where it was signed, or if it's valid under the laws of the state where it was signed. A military advanced medical directive under federal law is also valid in Maine.
Can my parent change their mind after signing?
Yes. Your parent can revoke the agent's designation by a signed writing or by personally telling the supervising health care provider, and can revoke instructions in any way that shows the intent. A health care provider can't require or prohibit signing or revoking a directive as a condition of care.
Getting started
An advance directive only helps if it's signed while your parent can sign it, with two witnesses present in person, and the right people have copies. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- Maine Revised Statutes, Title 18-C, Article 5: the Uniform Health Care Decisions Act, including definitions (§ 5-802), signing and agents (§ 5-803), remote signing in isolation (§ 5-803-A), revocation (§ 5-804), the optional form (§ 5-805), surrogates (§ 5-806) and guardians (§ 5-807); published by the Office of the Revisor of Statutes.
- Maine Law and Legislative Reference Library, Living wills: what advance directives are called in Maine.
- Maine Office of Aging and Disability Services, Maine Health Care Advance Directive Form (2008): the older state-hosted form and its signing instructions.
- Maine EMS, Maine POLST form: the portable medical order.
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