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Friday, September 25, 2020

The Importance of a Health Care Proxy in Massachusetts

One of the three most basic estate planning documents is the health care proxy.  This is the document where an individual gives permission to another person to make health care decisions on their behalf in the event they are incapacitated or unable to make health care decisions for themselves.  This document is especially important in Massachusetts because under Massachusetts law, there is no identified law that allows for the appointment of a default surrogate under any circumstances.  That means that your spouse, parents, and children have no legal right to make health care decisions for you.

Massachusetts is in the minority with regards to the treatment of health care proxies.  The three other states that have similar positions to Massachusetts are New Jersey, Missouri, and Nebraska.  The majority of states have a surrogate hierarchy in place.  In Rhode Island, medical caregivers will work with the family to make appropriate decisions for your specific situation (but will also follow the guidelines of a properly executed Rhode Island advance directives, such as a living will or a durable power of attorney for health care).

A health care proxy is generally a simple and straightforward document that ensures that your loved one (or whoever you think would best serve your interests) can make health care decisions for you if you are ever unable to make the decisions for yourself.

So what happens if a person becomes incapacitated but never executed a health care proxy?  The short answer is it is not a good situation to be in.  If there is no health care proxy in place, family members or the medical institution that is treating the individual will have to go to court to have someone appointed as the guardian of the individual.  This is not a quick process and is often expensive, burdensome, and time-consuming (and that is even if all the family members agree who should serve as guardian).  If there is any disagreement regarding who should serve as a person's guardian, the guardianship process can be far more expensive and drawn out.  That is why it is important that anyone over the age of eighteen (yes, once your children turn eighteen you can no longer make medical decisions for them) have a health care proxy in place.

In Massachusetts General Laws c. 201D, § 16 it states: "In those instances that a health care proxy has not been executed, nothing herein shall preclude a health care provider from relying upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law."  Since there is no explanation of who would be considered "responsible parties," this is not a law that one should assume will work in place of a health care proxy.  There are instances where health care providers will rely on M.G.L. c. 201D (informally, of course), and allow family members to make decisions when they are all in agreement.  However, this law is by no means a replacement for a validly executed Health Care Proxy in Massachusetts.

If you have any questions about your Last Will and Testament, estate planning, including health care proxies, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.


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