Alternative to Guardianship: A Health Care Proxy

As a competent adult, you have the right to make your own health care decisions and appoint a trusted person, called a Health Care Agent, to make health care decisions for you if you become incapacitated. However, if you have not appointed a Health Care Agent and become incapacitated, the Massachusetts court can step in to protect your rights and appoint a Guardian to make medical decisions on your behalf. A Health Care Proxy is considered an alternative to Guardianship, as giving your Health Care Agent the legal right to make medical decisions on your behalf can avoid the need for a guardianship.

1. What is a Health Care Proxy?

A Health Care Proxy is a legal document where you appoint a trusted person, called a Health Care Agent, to make medical care and treatment decisions on your behalf if you become incapacitated. A Health Care Proxy is legally binding and can be executed without involving the court.

2. Who can appoint a Health Care Agent by executing a Health Care Proxy?

In Massachusetts, the law states, “Every competent adult shall have the right to appoint a health care agent by executing a health care proxy”. The adult must be 18 years old, of sound mind, and under no constraint or undue influence.  The law does not provide us with one legal definition or test of sound mind. Generally, an adult can execute a Health Care Proxy if the adult understands that he or she is giving another person the authority to make medical decisions on the adult’s behalf if the adult becomes incapacitated.

3. How does a Health Care Proxy work?

As a competent adult, you choose a family member or a trusted friend as your Health Care Agent and discuss your wishes for future medical treatment and care. If you are unconscious or have a serious illness and cannot speak for yourself, your Health Care Agent steps in to carry out your choices for treatment and makes medical decisions on your behalf.

4. What do I discuss with my Health Care Agent?

You and your Health Care Agent discuss what is most important to you in carrying out your future care and treatment preferences. Let your agent know what living well means to you given your medical condition and potential complications. Talk to your agent about which medical treatments fit your beliefs and values, and what treatments you would not want to receive.

5. Can I change my mind or cancel the Health Care Proxy?

Yes. You can appoint a new Health Care Agent, or change or cancel the document, as long as you are able to make sound decisions. It is a good idea to revisit and update this document periodically as your medical outlook and choices may change overtime.

6. What is an Advance Directive?

The term Advance Directive can have a few meanings.  Advance Directive is sometimes used as a general term that refers to a written plan you make in advance that communicates your instructions for future health care choices in case you become incapacitated and are unable to speak for yourself.

An Advance Directive, or a Living Will, is commonly referred to as a document where you write down your wishes and instructions for future medical care and life sustaining treatments. You state your preferences regarding cardiopulmonary resuscitation, intubation and ventilation, artificial nutrition and hydration, care and comfort measures other medical treatments and end of life care. An Advance Directive or Living Will is not a legally binding document in Massachusetts, but can be very helpful in guiding your Health Care Agent when making medical decisions on your behalf and explaining your wishes to doctors and loved ones. It can be changed or modified as often as you like, as long as you are able to make sound decisions.

7. Should I execute a Health Care Proxy, an Advance Directive, and a Durable Power of Attorney?

Yes. These three documents work together to ensure your choices and wishes are carried out if you are unable to make choices for yourself. The Health Care Proxy gives your Health Care Agent the legal  power to make medical decisions on your behalf. The Advance Directive gives your Health Care Agent specific instructions on the care and treatment you want. The Durable Power of Attorney gives your attorney-in-fact the power to manage your financial affairs and direct funds for your care as needed.

8. Why do it now?

By appointing a Health Care Agent and writing down your medical care choices in advance, you tell your friends, family, and doctors what it means to take good care of you if you become unable to speak for yourself. Making choices now can improve your end of life care, and may offer you peace of mind knowing your wishes and instructions will be honored by your doctors and family members. Executing a Health Care Proxy while competent can avoid the need for Guardianship.

9. Where do I find more information and a sample Health Care Proxy?

For more information, instructions and a sample form, go to:

http://www.massmed.org/AM/Template.cfm?Section=Search&CONTENTID=2570&TEMPLATE=/CM/ContentDisplay.cfm

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