The Health Care Proxy: A Basic Overview

The Massachusetts Health Care Proxy law allows an adult to appoint another adult as “health care agent” to make medical and health care decisions for her if she is unable to make or communicate decisions herself. A Health Care Proxy (“HCP”) is a basic estate planning document that, along with a Durable Power of Attorney, is essential for managing one’s estate and well-being in the event of incapacity. So, what exactly does a HCP entail?

When Does a HCP Become Effective?

The health care agent is authorized to start making decisions when the person who made the HPC – the “principal” – is unable to “understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of any alternatives to any proposed health care, and to reach an informed consent.” This determination must be made in writing by the principal’s physician.

What Can the Health Care Agent Do?

An agent can make all decisions involving the health care of the principal that the principal could make herself unless the HCP expressly limits this authority. For this reason, a well-drafted HCP will try to anticipate an extensive set of scenarios that might arise and should authorize the agent accordingly. If  guidance for a particular decision is not set forth in the document, then the law provides that the agent must consult with the principal’s physicians and make a decision in light of the principal’s values or best interests. For this reason, it is important for the principal to discuss her wishes and beliefs regarding medical treatment with the prospective agent as soon as a new HCP is executed.

Is a Health Care Proxy the Same as a “Living Will”?

No. These two documents are materially different. A living will is a document that sets forth rigid advance instructions regarding one’s medical treatment (particularly end-of-life treatment) to be implemented by one’s medical care providers. There is no need for an agent to serve as one’s representative. The HCP, in contrast, appoints a representative – the health care agent – to make those decisions as the need arises. In this way, the HCP is much more flexible than a living will.

Significantly, Massachusetts law does not recognize living wills, meaning that they are not enforceable. Nevertheless, a HCP should include “living will” provisions that provide non-binding guidance to the agent regarding end-of-life decisions. It is thus important to choose an individual that will likely respect the principal’s end-of-life desires when considering possible agents.  

Can the Health Care Proxy be Changed?

Certainly. The principal can always execute a new HCP, which automatically revokes any prior HCP. A principal can simply revoke an existing HCP by giving written or oral notice to the agent or health care provider. Where an agent is the principal’s spouse, as is often the case, a divorce or separation will automatically terminate the agent’s authority.

What if I Do Not Have a Health Care Proxy?

If an adult becomes incapacitated without a HCP, then the principal’s medical care providers may consult with certain family members – namely a spouse or, if none, the principal’s children – regarding substituted judgment for the principal’s medical care. While this may be sufficient, it is easy to see how disputes may arise without clear guidance from the principal. If there is no close family member available, or if a dispute among family members does arise, then a legal guardian must be appointed by the Probate and Family Court. This process can be costly and time consuming.

Every client we work with leaves our office with a comprehensive Massachusetts Health Care Proxy. If you or your family have further questions about this or any other planning document, please contact us for a free initial consultation.