Massachusetts Health Care Proxy Lawyer

What is a health care proxy?

A health care proxy is a legal document in which you appoint a health care agent to make health care decisions for you if your doctor determines that you no longer have the capacity to make or communicate them. Massachusetts health care proxies are governed by General Laws chapter 201D.

Your health care agent can talk with your doctors, review your medical records, consent to or refuse treatment, choose care providers and facilities, and make decisions about life-sustaining treatment, all based on your wishes.

A health care proxy covers medical decisions only. Financial and property decisions are handled by a durable power of attorney.

Why a health care proxy matters so much in Massachusetts

Many states have a law that lets a spouse, adult child or other close relative make medical decisions automatically when a patient cannot. Massachusetts does not have a general law like that.

In practice, doctors often talk with family members in an emergency. But when there is a serious decision, a disagreement within the family, a decision about life-sustaining treatment or a move to a nursing home, a hospital may require someone with legal authority. Without a health care proxy, that usually means a family member must petition the Probate and Family Court to be appointed guardian.

Guardianship takes time, costs money, is a public court process, and may result in the court choosing someone you would not have picked. A health care proxy signed today avoids that.

When does the health care proxy take effect?

Your health care proxy only takes effect when your attending physician determines, in writing, that you lack the capacity to make or communicate health care decisions. Until then, you make your own decisions, and your agent has no authority to override you.

If you regain capacity, your own decisions control again. The proxy is there only when you need it.

Choosing your health care agent

Your health care agent should be someone who:

• Knows you well and understands your values, religious beliefs and wishes
• Will follow your wishes even if they personally disagree
• Can stay calm and speak up for you with doctors and hospitals
• Is available, especially in an emergency
• Is at least 18 years old

You name one health care agent at a time. You should also name an alternate agent, who can act if your first choice is unavailable, unwilling or unable to serve.

Massachusetts law limits who can serve. A person who works for, operates or administers a hospital, nursing home or other facility where you are a patient generally cannot be your agent, unless they are related to you by blood, marriage or adoption.

How your agent decides

Your agent must make decisions according to your wishes, including your religious and moral beliefs, when they are known. If your wishes are not known, your agent decides based on what is in your best interest. That is why talking with your agent about your values is as important as signing the document.

Questions to talk through with your agent

Your agent will feel more confident, and your family will argue less, if you have talked about your wishes ahead of time. Useful topics include:

• What quality of life matters most to you
• Whether you would want aggressive treatment if recovery were unlikely
• Your feelings about breathing machines, feeding tubes and CPR
• Whether you would prefer to be cared for at home, if possible
• Religious beliefs or practices your care should respect
• Whether you wish to be an organ donor

Decisions your agent may face

People often think of a health care proxy only for end-of-life decisions. In practice, agents are asked to make many kinds of decisions, such as:

• Consenting to surgery, tests and other treatment
• Choosing a rehabilitation facility after a hospital stay
• Deciding whether a move to a nursing home or assisted living is needed
• Accepting or refusing life-sustaining treatment, such as CPR, a ventilator or a feeding tube
• Choosing hospice or comfort care
• Consenting to treatment for dementia, depression or other conditions affecting the mind

A health care proxy can be stronger than a court-appointed guardianship. In Massachusetts, a guardian generally needs a separate court order before admitting a person to a nursing facility or consenting to antipsychotic medication. The Supreme Judicial Court has held that a health care agent may consent to that medication under a valid proxy, without the separate court process a guardian would face. For families caring for a loved one with dementia, that difference matters.

Signing requirements in Massachusetts

A Massachusetts health care proxy must be:

• Signed by an adult who is at least 18 years old and of sound mind
• Signed in the presence of two adult witnesses
• Signed by both witnesses, who state that you appeared to be at least 18, of sound mind and under no constraint or undue influence

Your health care agent cannot serve as a witness. Notarization is not required. We supervise the signing in our office so it is done correctly, and we prepare it together with your other estate planning documents.

The health care proxy and HIPAA

Federal privacy rules, known as HIPAA, limit what doctors and hospitals can share. A HIPAA authorization lets the people you choose, such as your health care agent or adult children, receive your medical information even before the proxy takes effect. That helps your family understand what is happening and prepare to act. We include a HIPAA authorization with every estate plan.

Health care proxy and living will: what is the difference?

A health care proxy names a person to decide for you. A living will is a written statement of your wishes about medical treatment at the end of life, such as whether you would want a breathing machine or a feeding tube if you were terminally ill or permanently unconscious.

Massachusetts does not have a statute that makes living wills legally binding. Your health care proxy is the binding document. A living will is still very valuable, because it tells your health care agent and your doctors what you want, so your agent can carry out your wishes with confidence. We recommend both.

MOLST forms and emergency care

A MOLST form (Medical Orders for Life-Sustaining Treatment) is different from a health care proxy. It is a medical order signed by your clinician, usually for people who are seriously ill, that tells emergency responders and hospitals which treatments you want or do not want, such as CPR or a ventilator.

A MOLST form works alongside your health care proxy. Your health care agent can help complete or update a MOLST if you cannot. Talk with your doctor about whether a MOLST is right for you.

Health care proxies for young adults

When a child turns 18, parents lose the automatic right to make medical decisions or receive medical information about them. If a college student is in an accident or becomes seriously ill, parents may be shut out of important conversations.

Every young adult should sign a health care proxy, a HIPAA authorization and a durable power of attorney before heading to college or moving out. It is quick, affordable and gives the whole family peace of mind.

Changing or revoking your health care proxy

You can revoke your health care proxy at any time by telling your agent or your health care provider, orally or in writing, or by doing anything that shows you want to revoke it. Signing a new health care proxy revokes the old one.

Under Massachusetts law, if your spouse is your health care agent, the appointment is automatically revoked by divorce or legal separation unless the proxy says otherwise.

We recommend reviewing your health care proxy every few years, after a divorce or the death of your agent, and after a major diagnosis.

Make sure your proxy can be found

A health care proxy only helps if your doctors can find it in an emergency. After signing:

• Give copies to your health care agent and alternate
• Give a copy to your primary care doctor and ask that it be added to your medical record
• Bring a copy to the hospital for planned procedures
• Keep the original in a safe but easy-to-reach place, not a locked safe deposit box

How we prepare your health care proxy

• Free consultation. We talk about your health, your family and your wishes, in English, Portuguese or Spanish, and tell you the cost before you decide.
• Choosing agents. We help you think through who should serve as your agent and alternate.
• Drafting. We prepare your health care proxy, HIPAA authorization and, if you wish, a living will.
• Signing. You sign in our office with two witnesses.
• Copies. We explain who should receive copies and how to keep your documents available.

Frequently asked questions

Does a health care proxy need to be notarized in Massachusetts?

No. It must be signed in front of two adult witnesses, who also sign. Your agent cannot be a witness.

Can my spouse make medical decisions for me without a health care proxy?

Not automatically. Massachusetts has no general family consent law. Without a proxy, a serious decision may require a court-appointed guardian.

Can I name two health care agents?

You name one agent at a time, plus an alternate who can step in if the first agent is unavailable.

Is the free Massachusetts health care proxy form enough?

The standard form meets the legal requirements, but it is short. We prepare a proxy as part of a complete plan, with a HIPAA authorization and guidance about your wishes.

When does my health care agent take over?

Only when your attending physician determines in writing that you cannot make or communicate your own health care decisions.

Does a health care proxy from another state work in Massachusetts?

Generally, a proxy validly signed in another state is honored in Massachusetts. If you live here now, we recommend signing a Massachusetts proxy.

Should my 18-year-old sign a health care proxy?

Yes. Once your child turns 18, you need a health care proxy and HIPAA authorization to make decisions or get information if they are hurt or ill.

Can my health care agent decide on nursing home care?

Yes. Your agent can make decisions about where you receive care, including a nursing home or rehabilitation facility, when you cannot decide for yourself.

Can you help if I speak Portuguese or Spanish?

Yes. Our team includes fluent Portuguese-speaking and Spanish-speaking staff who work with Attorney Botelho.