A competent adult in Massachusetts can create a Health Care Proxy (HCP), a legal document appointing a trusted person, called a Health Care Agent (HCA), to make medical care and treatment decisions on the person’s behalf if he or she later becomes incapacitated.
The individual executing the HCP and appointing an agent is called the principal. The principal must have capacity to understand the nature of the document and make an informed decision regarding the document at the time the document is signed by the principal.
A HCP only comes into effect after a doctor determines in writing that the principal is no longer able to make and/or communicate his or her own medical decisions. A HCP is a powerful tool which allows a person a say over decision making.
However, it requires advance planning. A HCP may be limited by the principal at any time while the principal has capacity and before the HCP is invoked. The principal can limit the HCP by expressly indicating when the agent may act or by limiting the agent’s authority. For example, the principal may state in the proxy that the HCA does not have the authority to decide whether the principal will be admitted to a facility or consent to certain medications.
When an individual becomes incapacitated and does not have a HCP, treating providers may refuse to treat (other than what is needed to address an emergency). The provider may petition the court to intervene or ask family members to petition the court to appoint a guardian to make medical treatment decisions on the individual’s behalf.
In Massachusetts, every competent adult has the right to appoint his or her own health care agent. (HCA). The adult must be 18 years old, of sound mind, and under no constraint or undue influence. The law does not provide one legal definition or test of sound mind.
Responsibilities and Authority of a Health Care Agent
A HCA has the power to make medical care and treatment decisions on behalf of someone who is incapacitated, unless certain powers are expressly limited by the HCP. Decisions relating to health are interpreted broadly unless the HCP specifically limits the power of the agent. The principal should be extremely clear if he or she does not want the agent to have certain authority, like the authority to admit to a psychiatric facility or nursing facility, or the authority to sign a
Do Not Resuscitate (DNR)/Do Not Intubate (DNI) order form.
In general, the HCA has authority to make any and all decisions a patient would make, if able.
These decisions may include:
- reviewing medical charts;
- discussing treatment options;
- receiving the same medical information the individual would receive;
- consenting to or refusing medical tests or treatments, including life-sustaining treatment;
- asking questions and getting explanations;
- conferring with medical teams;
- requesting consultations and second opinions; and
- authorizing a transfer to another physician or institution, including another type of facility (such as a hospital or skilled nursing home).
When there is a disagreement about the Health Care Proxy
The court also has jurisdiction over certain disputes even when there is a HCP, such as when the principal and HCA disagree (and therefore the proxy is “revoked” by the principal) or when family members disagree over treatment. In these cases, the court may determine that the HCP remains valid (or “affirms” the proxy) or it may revoke the proxy and appoint a guardian.
If there is a disagreement over the HCP, a party can bring the matter to court. This action begins by filing a “Petition for Special Proceeding in re: a Health Care Proxy Pursuant to G.L. c. 201D”
· affirm a HCP;
· remove a HCA;
· override a HCA’s decisions; or
· determine the validity of the HCP.
Once the petition is filed, a hearing date will be scheduled. If the principal does not have an attorney, the court will appoint one. The principal must be provided notice of this proceeding.
An interested party may object by filing an appearance to object prior to the proceeding. At the hearing, the court may order that the proxy is valid or invalid, affirm the proxy or remove the agent. The court may reject an agent’s decision. If guardianship becomes necessary, the court should limit it to the extent possible.
If you are a party or wish to file a petition for special proceedings regarding a health care proxy, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.