Who is legally allowed to witness someone signing a living will in Maryland, and can the lawyer handling their estate be one of the witnesses?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General to clarify who was qualified to witness a "living will," the new written declaration Maryland's 1985 living will statute let people sign to direct that life-sustaining procedures be withheld or withdrawn if they reached a certified terminal condition. Specifically, he asked whether witnesses had to personally know the person signing, whether a law firm member or employee named as the estate's personal representative could witness it, and whether a lawyer already hired to represent the estate could witness it.

The Attorney General concluded that both the statute's list of witness qualifications and the model declaration form it required worked together, not against each other, so all of their safeguards applied. That meant a living will needed at least two witnesses who could truthfully attest the declarant was "personally known" to them, since that requirement let a witness credibly vouch for the declarant's competence. It also meant anyone who knew they had been named personal representative of the declarant's estate was disqualified as a witness because that role came with financial compensation from the estate, a disqualification that extended to any law partner or employee of that person's firm. The same reasoning barred an attorney already retained to represent the estate, and the opinion further advised, as a matter of caution rather than strict legal requirement, that an attorney who reasonably expected to be retained for the estate should also avoid serving as a witness.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. As the editor's note to the original opinion records, the General Assembly adopted clarifying amendments in 1986 to the financial-interest witness disqualification and to the model living will form discussed here (Chapters 831 and 832, Laws of Maryland 1986).

Common questions

Did the witnesses to a Maryland living will have to personally know the person signing it?
Yes, according to this opinion. Even though the statute's own list of witness qualifications didn't say so explicitly, the model declaration form required by the same law had witnesses attest the declarant was "personally known" to them, and the Attorney General read the two provisions together as complementary safeguards, both of which had to be satisfied.

Could the lawyer named to handle someone's estate also witness their living will?
No. The opinion concluded that anyone who knew they had been designated personal representative of the declarant's estate, attorney or not, was disqualified as a witness because that role came with compensation from the estate, which counted as a disqualifying "financial interest deriving from the declarant." That disqualification also extended to any law partner or employee of the disqualified person's firm.

What if an attorney hadn't been formally hired yet but expected to represent the estate later?
The opinion drew a distinction here. An attorney already retained to represent the estate before the declarant's death was legally disqualified as a witness. An attorney who merely had a "reasonable expectation" of future representation wasn't legally barred, but the opinion advised, as a matter of prudence, that such an attorney should still avoid serving as a witness to prevent later questions about the living will's validity.

Background and statutory framework

Maryland's living will statute, enacted as Chapter 620, Laws of Maryland 1985 and codified at §§5-601 through 5-614 of the Health-General Article, let a person direct in writing that life-sustaining procedures be withheld or withdrawn if a terminal condition was later certified by two physicians. The statute's preamble balanced two goals: recognizing "the fundamental right of competent adults... to control decisions relating to the rendering of their medical care," while making clear that "[n]othing in this Act is intended to condone, authorize, or approve mercy killing." Section 5-602(a) listed witness disqualifications, including relatives within degrees specified in §2-202 of the Family Law Article, creditors, and anyone "knowingly entitled to any portion of the estate... under any existing testamentary instrument... or knowingly entitled to any other financial interest deriving from the declarant," while the statute's own model declaration form in §5-602(c)(1) separately required witnesses to attest the declarant was "personally known" to them.

Applying the rule that separate statutory provisions should be read together to give full effect to legislative intent, drawn from State v. Fabritz, 276 Md. 416, 421-22 (1975), and Shub v. Simpson, 196 Md. 177, 191 (1950), the opinion found the witness list and the model form imposed complementary, not conflicting, safeguards. It grounded the "personally known" requirement in the common-law expectation that "an attesting witness should inform himself as to the capacity of a testator" before witnessing, per Kuenne v. Kuenne, 219 Md. 101, 107 (1959), and found that compensation payable to a personal representative under §7-601 of the Estates and Trusts Article, or to an attorney retained by an estate under §7-602, both counted as a disqualifying "financial interest," language notably more expansive than the ordinary rule allowing a will's beneficiaries or executors to witness the will itself, per Leitch v. Leitch, 114 Md. 336 (1911), and Estep v. Morris, 38 Md. 417 (1873).

Citations

Statutes:

• §5-602(a) of the Health-General Article (procedural requirements for executing a living will)
• §5-602(a)(4) of the Health-General Article (witness qualifications and disqualifications)
• §5-602(c)(1) of the Health-General Article (model living will declaration form)
• §5-601(e) of the Health-General Article (definition of "life-sustaining procedure")
• §5-601(g) of the Health-General Article (definition of "terminal condition")
• §5-603 of the Health-General Article (revocation of a living will)
• §5-610 of the Health-General Article (no presumption for those without a declaration)
• §5-611 of the Health-General Article (declarations directing continuation of life-sustaining procedures)
• §5-614 of the Health-General Article (criminal penalty for forgery/concealment)
• §2-202 of the Family Law Article (degrees of relationship for witness disqualification)
• §7-601 of the Estates and Trusts Article (personal representative compensation)
• §7-602 of the Estates and Trusts Article (attorney's fees for estate representation)
• Chapter 620, Laws of Maryland 1985 (enacted the living will statute)

Cases:

• State v. Fabritz, 276 Md. 416, 421-22 (1975)
• Shub v. Simpson, 196 Md. 177, 191 (1950)
• Kuenne v. Kuenne, 219 Md. 101, 107 (1959)
• Leitch v. Leitch, 114 Md. 336 (1911)
• Estep v. Morris, 38 Md. 417 (1873)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

"LIVING WILLS"

Witness Qualifications—Personal Knowledge Required-Scope of Disqualification for Financial Interest.

November 27, 1985

The Honorable John F. Slade, III
Maryland House of Delegates

You have requested our opinion about the qualification of witnesses to a person's declaration regarding life-sustaining procedures, commonly known as a "living will". Specifically, you ask: (1) whether the person who is executing the living will (the "declarant") must be personally known to the witnesses; (2) whether a member or employee of a law firm who is designated as personal representative of the declarant's estate may be a witness; and (3) whether an attorney who has already been retained to represent the declarant's estate, but who is not designated as personal representative, may be a witness.

For the reasons stated below, we conclude as follows:

1. A person executing a living will is required to do so in the presence of at least two qualified witnesses who can attest that the declarant is personally known to them.

2. Anyone, whether or not an attorney, who has knowledge of having been designated as the personal representative of the declarant's estate may not be a witness to the declarant's living will. If a person is disqualified for this reason, no partner of the person or employee of the person's firm may be a witness.

3. An attorney who is in the unusual position of having been retained to represent the declarant's estate prior to the declarant's death may not be a witness. If an attorney is disqualified for this reason, no partner of the attorney or employee of the attorney's law firm may be a witness. Further, we advise that an attorney who has a reasonable expectation of representing the declarant's estate not serve as a witness.

I
The Living Will Statute

In its 1985 Regular Session, the General Assembly authorized the creation and the carrying out of "living wills", written declarations directing that certain life-sustaining procedures be withheld or withdrawn. Chapter 620, Laws of Maryland 1985 (codified at §§5-601 through 5-614 of the Health-General Article ("HG" Article)). The effect of a living will is plainly stated in the model declaration set out in HG §5-602(c)(1):

"'If at any time I should have an incurable injury, disease, or illness certified to be a terminal condition by two (2) physicians who have personally examined me, one (1) of whom shall be my attending physician, and the physicians have determined that my death is imminent and will occur whether or not life-sustaining procedures are utilized and where the application of such procedures would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication, the administration of food and water, and the performance of any medical procedure that is necessary to provide comfort care or alleviate pain.'"1

Although a living will "may include additional provisions on this or other subjects" [HG §5-602(c)(2)], nevertheless it "shall be substantially in the... form" of the model declaration in HG §5-602(c)(1) and may not be "inconsistent with other provisions" of the statute.

In authorizing living wills, the General Assembly recognized the importance of individual self-determination and dignity in death. At the same time, the General Assembly intended no implication whatever that the statute permits mercy killing. Thus, the preamble to the bill states that: "It is the fundamental right of competent adults, based on the autonomy and sanctity of the individual, to control decisions relating to the rendering of their medical care and treatment." But the preamble also states that: "Nothing in this Act is intended to condone, authorize, or approve mercy killing or to permit any affirmative or deliberate act or omission to end life." As described in the legislative history, "[t]his bill provides an effective way for a person to express their desire not to receive life-sustaining care, while at the same time providing safeguards to prevent withholding procedures against a person's wishes." Report of the House Environmental Matters Committee on House Bill 453, at 1 (1985) ("House Report").

The balancing of these concerns is reflected in several provisions, including the "safeguards" about witnesses discussed in Part II below. While HG §5-602 permits a declarant to instruct that life-sustaining procedures not be used "to artificially prolong the dying process," HG §5-611 allows persons to execute a declaration with the opposite objective, "directing the initiation or continuation of life-sustaining procedures." HG §5-610 cautions that the provisions of the statute "[d]o not create a presumption concerning the intention of an individual... who has not executed a declaration," and they do not authorize "any affirmative or deliberate act or omission to end life other than to permit the withholding or withdrawing of life-sustaining procedures from a declarant in a terminal condition."

Furthermore, the drafters of the statute clearly intended that those executing a living will be able to change their minds and revoke it with relative ease. HG §5-603 allows a declarant to revoke a living will through all of the customary methods for will revocation, with one unusual addition, revocation by a mere "expression to that effect, after the declarant knows of the disease, illness, or injury involved in any question regarding the existence of a terminal condition." Compare §4-105 of the Estates and Trusts Article ("ET" Article) (revocation of will) with HG §5-603 (revocation of living will). Finally, the statute makes it a misdemeanor for anyone to forge either a revocation or a declaration or to conceal a revocation. HG §5-614.

In sum, the living will statute reflects the General Assembly's overall intent that each person's decision about the dying process be given effect and that these decisions be made in a competent and voluntary manner, "sheltered from any improper influence or coercion." House Report at 2.

II
Witness Qualifications

HG §5-602(a) contains the following procedural requirements for the execution of a living will:

"Any individual qualified to make a will under §4-101 of the Estates and Trusts Article may execute a declaration, as provided in paragraph [c] of this section,2 directing the withholding or withdrawal of life-sustaining procedures under this subtitle. The declaration shall be:

(1) Voluntary;

(2) Dated and in writing;

(3) Signed by the declarant or, if at the declarant's expressed direction and in the declarant's presence, by another individual on behalf of the declarant;

(4) Executed in the presence of and attested by at least 2 witnesses each of whom, at the time of execution, is at least 18 years old and is not:

(i) An individual who signed the declaration at the direction and on behalf of the declarant under paragraph (3) of this subsection;

(ii) Related to the declarant by blood or marriage within a degree listed under §2-202 of the Family Law Article;

(iii) Either a creditor of the declarant or knowingly entitled to any portion of the estate of the declarant under any existing testamentary instrument of the declarant or knowingly entitled to any other financial interest deriving from the declarant; or

(iv) Financially or otherwise responsible for the declarant's medical care or an employee of any such person."

In addition, HG §5-602(c)(1) requires that a living will "shall be substantially in the... form" of the model set out verbatim in the statute. The model includes the following statement, to be signed by witnesses to the declaration:

"'Under penalty of perjury, we state that this declaration was signed by ___ in the presence of the undersigned who, at ___ request, in ___ presence, and in the presence of each other... declare: The declarant is personally known to me, and I believe the declarant to be of sound mind. I did not sign the declarant's signature to this declaration. Based upon information and belief, I am not related to the declarant by blood or marriage, a creditor of the declarant, entitled to any portion of the estate of the declarant under any existing testamentary instrument of the declarant, financially or otherwise responsible for the declarant's medical care, or an employee of any such person or institution.'"

There are some differences between the qualifications of witnesses specified in HG §5-602(a)(4) and those to which the witnesses attest in the model declaration set out in HG §5-602(c)(1). Specifically, the model declaration requires the witness to attest that "'[t]he declarant is personally known to me, and I believe the declarant to be sound of mind.'" HG §5-602(a)(4) does not state such a requirement. In addition, the model declaration requires the witness to attest that he or she is not "'an employee of any... person or institution'" that is itself disqualified from being a witness; HG §5-602(a)(4) does not contain that disqualification of employees.3 Conversely, HG §5-602(a)(4)(iii) provides that a person who is knowingly entitled either to a portion of the declarant's estate under "any existing testamentary instrument" or to "any other financial interest deriving from the declarant" may not be a witness; the model declaration includes only the reference to entitlement under "any existing testamentary instrument".4

However, while the two provisions differ, they do not conflict. The model declaration in HG §5-602(c)(1) is not inconsistent with the listing of witness qualifications in HG §5-602(a)(4). Rather, the model declaration in effect provides two additional witness qualifications, that the declarant be "personally known" to the witness and that employees of those who are disqualified are also disqualified, while HG §5-602(a)(4)(iii) expands upon the model declaration's disqualification of witnesses for financial interest.

Because these provisions are complementary rather than contradictory, there is little difficulty in construing them. To the extent reasonably possible, separate statutory provisions should be read together in order to effectuate the legislative intent and to give full effect to all of the provisions. E.g., State v. Fabritz, 276 Md. 416, 421-22 (1975); Shub v. Simpson, 196 Md. 177, 191 (1950).

As discussed in Part I above, the intent of the statute is to "provid[e] people the opportunity to make their desires know[n], while ensuring that they have executed the declaration with appropriate thought, and sheltered from any improper influence or coercion." House Report at 2. The statute "establish[es] a detailed process, with safeguards, by which a person may elect not to have their life artificially extended." Report of Senate Judicial Proceedings Committee on House Bill 453, at 2 ("Senate Report"). The witness qualification requirements in HG §5-602(a)(4) and the model declaration in HG §5-602(c)(1) should be construed together toward this objective. Hence, all "safeguards" in both sections should be given effect. In this way, the integrity of the declarant's decisionmaking will be protected to the fullest.

Applied to your first question, this construction means that the declarant must be known by each witness. The requirement in the model declaration that the declarant be "personally known" to the witness ensures that the witness can credibly attest that the declarant was competent when he or she executed the living will. Cf. Kuenne v. Kuenne, 219 Md. 101, 107 (1959) ("an attesting witness should inform himself as to the capacity of a testator to a will before he undertakes to witness it"). The element of competence goes hand in hand with the General Assembly's overall concern that a living will be executed in a considered and voluntary manner.5

In response to your second question, we conclude that any personal representative of the declarant's estate, including a member or employee of a law firm who is designated as personal representative, may not be a witness. By disqualifying witnesses based on their knowing entitlement either "under any existing testamentary instrument of the declarant" or "to any other financial interest deriving from the declarant," HG §5-602(a)(4)(iii) furthers the overall goal of guarding against undue influence and pressure.6 The intent is that witnesses be "disinterested." House Report at 1; Senate Report at 1.7 Although "entitlement under [the declarant's] testamentary instrument" apparently refers only to a bequest, a person who is named as a personal representative in a will and who knows this would certainly be knowingly entitled to a "financial interest deriving from the declarant," in the form of compensation paid by the declarant's estate. See ET §7-601. Thus, that person is disqualified as a witness, as is any partner of the person or employee of the person's firm.

The same analysis applies to your third question. In the unusual event that the declarant had already retained an attorney to represent his or her estate, disqualification for "financial interest" would follow. See ET §7-602. Ordinarily, of course, an attorney would not be retained to represent an estate until the death of the declarant. However, if an attorney has a reasonable expectation of being retained to represent the estate, the attorney should refrain from serving as a witness to the declaration.

In short, anyone who knows that he or she has a "financial interest deriving from the declarant" may not be a witness. More generally, anyone having reasonable grounds to anticipate a specific financial benefit resulting from the declarant's death should not be a witness to a living will, to avoid potentially troublesome questions concerning the legality both of the living will and of the actions of those who abide by it.8

III
Conclusion

In summary, it is our opinion that:

1. A person executing a living will is required to do so in the presence of at least two qualified witnesses who can attest that the declarant is "personally known" to them.

2. Anyone, whether or not an attorney, who has knowledge of having been designated as personal representative of the declarant's estate may not be a witness to the declarant's living will. If a person is disqualified for this reason, no partner of the person or employee of the person's firm may be a witness.

3. An attorney who is in the unusual position of having been retained to represent the declarant's estate prior to the declarant's death may not be a witness. If an attorney is disqualified for this reason, no partner of the attorney or employee of the attorney's law firm may be a witness. Further, we also advise that an attorney who has a reasonable expectation of representing the declarant's estate not serve as a witness.

Stephen H. Sachs, Attorney General
Richard E. Israel, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: Since the issuance of this opinion, the General Assembly adopted clarifying amendments to one element of witness disqualification discussed in the opinion, HG §5-602(a)(4)(iii), and to the model form of living will. Chapters 831 and 832, Laws of Maryland 1986.

1 The key terms in a living will are defined in the statute. See HG §5-601(e) ("life-sustaining procedure"); HG §5-601(g) ("terminal condition"). The duties of an attending physician regarding the carrying out of a living will are stated in HG §5-604.

2 As enacted, this clause refers to "paragraph (b) of this section." This is an evident error. The model form of living will was initially set out in paragraph (b) of proposed HG §5-602. See House Bill 453. The current paragraph (b), concerning notice to the physician of the existence of the declaration, was added by amendment, and the model declaration became paragraph (c). The final version of the bill simply failed to take account of this re-lettering.

3 HG §5-602(a)(4)(iv) disqualifies the employees of a person who is "[f]inancially or otherwise responsible for the declarant's medical care." See note 7 below. There is no such express disqualification of employees in HG §5-602(a)(4)(ii) or (iii).

4 One additional minor difference is that HG §5-602(a)(4)(ii) bars as a witness anyone who is "[r]elated to the declarant by blood or marriage within a degree listed under §2-202 of the Family Law Article"; the model declaration prohibits a witness who is "'related to the declarant by blood or marriage,'" without further specification of the degrees of relationship. The mere absence of such specification in the model declaration does not, in our view, imply any intent to bar witnesses whose relationship to the declarant is more attenuated than that specified in §2-202 of the Family Law Article.

5 The declarant must attest that he or she is "'of sound mind'" and that the declaration is made "'willfully and voluntarily.'" HG §5-602(c)(1).

6 No comparable statutory language bars a beneficiary or executor of a will from being a witness. ET §4-102. See Leitch v. Leitch, 114 Md. 336 (1911); Estep v. Morris, 38 Md. 417 (1873).

7 The same goal underlies the disqualification of any person who is "[f]inancially or otherwise responsible for the declarant's medical care or an employee of any such person." HG §5-602(a)(4)(iv). Thus, for example, if the declarant is executing a living will after he or she is hospitalized, no employee of the hospital may serve as a witness.

8 However, the model witness declaration in HG §5-602(c)(1) includes the words "'[b]ased upon information and belief'" preceding the recital of disqualifying factors. Thus, an erroneous attestation made in good faith would not necessarily affect the validity of a living will.