Massachusetts law: a competent adult may execute a document - revocable living will or designation of health care proxy directing that life-sustaining procedures be withheld or withdrawn
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Massachusetts Advance Health Care Directive: It is not mandatory that you have health care directive, however it is highly recommended. Without advance directive you can not communicate your wishes to the doctor |
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Massachusetts law allows for two types of Advance Health Care Directives: a Health Care Proxy and a Living Will.
Before you start working on your Living Will or Health Care Proxy you should know the following definitions: HEALTH CARE PROXY is a document delegating to an agent the authority to make health care decisions for you while you are unable to make these decisions by yourself. According to MA law every competent adult shall have the right to appoint a health care agent by executing a health care proxy. Said health care proxy shall be in writing signed by such adult or at the direction of such adult in the presence of two other adults who shall subscribe their names as witnesses to such signature. Health care agent or agent is an adult to whom authority to make health care decisions is delegated under a health care proxy. Health care decision made by an agent under a health care proxy is a decision which is made in accordance with the requirements of Massachusetts health care proxy law, is consistent with any limitations in the health care proxy, and is consistent with responsible medical practice. Who can not be a health care agent: No person who is an operator, administrator or employee of a facility may be appointed as health care agent by an adult, who, at the time of executing the health care proxy is a patient or resident of such facility or has applied for admission to such facility unless said operator, administrator or employee is related to the principal by blood, marriage or adoption. A competent adult may designate an alternate health care agent as part of a valid health care proxy. Said alternate may serve when the designated health care agent is not available, willing or competent to serve and the designated health care agent is not expected to become available, willing or competent to make a timely decision given the patient's medical circumstances; or, the health care agent is disqualified from acting on the principal's behalf. After consultation with health care providers, and after full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects, the agent shall make health care decisions: (i) in accordance with the agent's assessment of the principal's wishes, including the principal's religious and moral beliefs, or (ii) if the principal's wishes are unknown, in accordance with the agent's assessment of the principal's best interests. Health care decisions by an agent pursuant to the Massachusetts health care proxy on a principal's behalf shall have the same priority over decisions by any other person, including a person acting pursuant to a durable power of attorney as would decisions by the principal, when competent, except as otherwise provided in the health care proxy or by specific court order overriding the proxy. A physician who is provided with a health care proxy shall arrange for the proxy or a copy thereof to be inserted in the principal's medical record. Health care is any treatment, service or procedure to diagnose or treat the physical or mental condition of a patient. In the absence of a Power of attorney for health care (health care proxy), the relatives of an incapacitated person have to file a petition with the Probate Court in order to have a legal guardian appointed to make medical decisions for her. Principal is a person who has executed a health care proxy. Attending physician is the physician, selected by or assigned to a patient, who has primary responsibility for the treatment and care of the patient, in whatever setting medical diagnosis or treatment is rendered. Where more than one physician shares such responsibility, any such physician may act as the attending physician. Capacity to make health care decisions is the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision. Health care provider is an individual or facility licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or professional practice. A health care provider shall comply with health care decisions made by an agent under a health care proxy to the same extent as if such decisions have been made by the principal, subject to any limitations in the health care proxy, or in any specific court order. Incapacity of patient; regained capacity: The authority of a health care agent shall begin after a determination is made, pursuant to the provisions of this section, that the principal lacks the capacity to make or to communicate health care decisions. Such determination shall be made by the attending physician according to accepted standards of medical judgment. The determination shall be in writing and shall contain the attending physician's opinion regarding the cause and nature of the principal's incapacity as well as its extent and probable duration. This written determination shall be entered into the principal's permanent medical record.If the attending physician determines that a patient lacks capacity because of mental illness or developmental disability, the attending physician who makes the determination must have, or must consult with a health care professional who has, specialized training or experience in diagnosing or treating mental illness or developmental disabilities of the same or similar nature in making such determination. A physician who has been appointed as a patient's agent shall not make the determination of the patient's capacity to make health care decisions. Notice of a determination that a principal lacks capacity to make health care decisions shall promptly be given orally and in writing: (i) to the principal, where there is any indication of the principal's ability to comprehend such notice; (ii) to the agent; and (iii) if the patient is in or is transferred from a mental health facility, to the facility director. A determination made pursuant to this section that a principal lacks capacity to make health care decisions is solely for the purpose of empowering an agent to make health care decisions pursuant to the Massachusetts health care proxy. Notwithstanding a determination pursuant to this section that the principal lacks capacity to make health care decisions, where a principal objects to a health care decision made by an agent pursuant to a health care proxy the principal's decisions shall prevail unless the principal is determined to lack capacity to make health care decisions by court order. In the event the attending physician determines that the principal has regained capacity: (i) the authority of the agent shall cease, but shall recommence if the principal subsequently loses capacity; and (ii) the principal's consent for treatment shall be required. A principal may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy. Liability for the cost of health care provided pursuant to an agent's decision shall be the same as if the health care were provided pursuant to the principal's decision. Please note that according to Massachusetts law the instructions contained in a Massachusetts living will are not legally binding. Disputes; court proceedings: The health care provider, the conservator for, or guardian of the principal, members of the principals family, a close friend of the principal, or the commissioner of public health may commence a special proceeding in a court of competent jurisdiction, with respect to any dispute arising out of use of a Health Care Proxy, including, but not limited to, a proceeding to:(i) determine the validity of the health care proxy; (ii) have the agent removed on the ground that the agent is not reasonably available, willing and competent to fulfill his or her obligations under this chapter or is acting in bad faith; or (iii) override the agents decision about health care treatment on the grounds that the decision was made in bad faith or the decision is not in the best interest of the Principal. LIVING WILL allows you to express your end-of-life health related wishes in advance, while you are in a good state of mind. In a Massachusetts Living Will you may state whether you accept or reject life-supporting treatment, such as feeding tube, artificial nutrition or hydration, cardiac resuscitation, mechanical respiration, etc., in case you can not communicate your wishes due to the illness, advanced age, or brain damage. In this document you may state whether you wish to donate your organs for research, educational or other purposes. You may also look at your Massachusetts Living Will as a supportive guideline for your Health Care Proxy (agent) to make the decision in compliance with your desires. After you sign your Massachusetts Advance Health Care Directive please do not forget to:
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