Health Care Proxies

Attorney Roberta A. Schreiber, who has specialized in estate planning for more than thirty years, has extensive experience in drafting Health Care Proxies and Living Wills.

Under Massachusetts law, you may appoint another person, referred to as your "Health Care Agent," to make decisions about your medical care if you are unable to do so. The document in which you appoint your Health Care Agent is called a "Health Care Proxy."

If you are being admitted to a hospital, even for outpatient surgery or treatment, Massachusetts law requires that you provide a copy of your Health Care Proxy at the time of admission. If you do not have a Health Care Proxy, you will be required to fill out the form provided by the hospital. Massachusetts law determines when your Health Care Agent has the power to make medical decisions on your behalf.

As long as you are able to make reasonable decisions regarding your medical care and living situation, your Health Care Agent does not have the power to make these decisions on your behalf. If you are unconscious, or if two doctors have determined that as a result of accident or illness, you are not thinking clearly and coherently, your attending physician must take instructions from your Health Care Agent. In some cases, your Health Care Agent's power to make decisions will be temporary. If you have a good recovery after an accident or serious illness, you will resume making decisions about your care.

If you suffer from a permanent and debilitating condition or illness, such as Alzheimer's Disease, your Health Care Agent will be making decisions on a permanent basis. Your Health Care Agent is required to make decisions that are consistent with your religious, moral, and ethical beliefs, following the instructions that you have included in your Health Care Proxy. If your wishes are not clear, or if there are no instructions about a particular decision that your Health Care Agent must make, he or she must exercise "substituted judgment" to make a decision that is in your best interest, and consistent with your beliefs. It is advisable to name an Alternate Health Care Agent to act on your behalf if your Health Care Agent is not available in an emergency to make decisions. If you do not have a Health Care Proxy and are permanently incapacitated, it may be necessary for a family member to petition the Probate Court to be appointed as your legal Guardian in order to make decisions about your medical care.

If you wish, you may list your preferences about specific kinds of treatment. The hardest thing for a Health Care Agent to do is to instruct your doctor regarding the use, or suspension, of extraordinary or artificial means of keeping you alive ("heroic measures"), particularly if your chances of recovery are slim, or if you would be severely incapacitated after recovery. For that reason, it is important to include a "Living Will Declaration" in your Health Care Proxy. The Living Will Declaration gives your Health Care Agent instructions about the use, or suspension, of extraordinary or artificial means of keeping you alive if your chances of recovery are very small or if you would be severely incapacitated after recovery.

The language about heroic measures can be general, stating your preference that no heroic measures should be used or that treatment should be withheld if it would artificially prolong your life without curing you. You may also list the specific kinds of treatments you would accept, or reject (such as renal dialysis, chemotherapy, and artificial nutrition and hydration) if your chances of recovery are very unlikely, or if you would be severely incapacitated if you did recover.

Your instructions in your Living Will should be clear and specific. Although this is difficult, you should have a conversation with your Health Care Agent, other family members, and your doctor about your beliefs and wishes. Talking about this potential situation while you are healthy and your mind is clear will provide guidance to your Health Care Agent and your family if this situation arises in the future. Although making this kind of decision is never easy, the burden of making the decision will be lessened if your Health Care Agent and family members are certain that they are carrying out your wishes.

If you would like more information about Health Care Proxies and Living Wills, or would like to schedule an appointment, please contact us.