FAQs for Health Care Professionals

What’s the difference between a Health Care Proxy and a guardianship?
Can my patient name both her husband and her daughter as co-Health Care Agents?
As a social worker, can I be a witness to our resident’s Health Care Proxy?
Should I honor my patient’s Rhode Island Durable Power of Attorney form?
Which Health Care Proxy should we honor–the one our resident signed on admission a month ago, or one he signed last week but has only one witness signature?
Should we honor a Proxy with the name of a health care organization at the top of the form?
Can my patient complete a Proxy for his son in a Massachusetts college?

What’s the difference between “capacity” and “competency”?
Can a nurse practitioner make the written determination of incapacity to activate a Health Care Proxy?
Who can make health care decisions for our incapacitated resident?

Can my patient’s Agent make mental health treatment decisions?
Can an Agent get information about our patient who never listed the Agent on his HIPAA waiver?
My patient died. Can her Agent donate my patient’s organs?
Can an Agent of an invoked HCP transfer that right to another person?
Can the Agent give permission for our facility to release information to other family members regarding our patient’s medical condition?

Can we contact the Alternate if the Agent hasn’t responded to phone calls in several weeks?
As a physician, what if I don’t agree with the Agent’s decision about care for my patient?
Isn’t refusing end-of-life care suicide?
Why can’t our practice simply make copies of the form to distribute to patients?

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What’s the difference between a Health Care Proxy and a guardianship?

Here’s a brief description of the various documents by which people can make decisions for others.

Power of Attorney: Allows a competent adult to name another person, called her “Attorney-in-Fact,” to conduct business transactions, such as pay bills, collect rents, etc. Often used when the signer cannot be physically present for a transaction, as when an out-of-town signer names someone to sign legal papers for her at a house closing. Expires automatically if the signer becomes mentally incapacitated or dies. Cannot be used to make health care decisions. Usually requires either a Notary or two witnesses to signing.

Durable Power of Attorney: Allows a competent adult to name another person to conduct business transactions (e.g., pay bills, collect rents, etc.) in case of present or future mental incapacity. The Power of Attorney is “durable” because it stays in effect even when the signer is mentally incapacitated. Usually expires automatically when the signer regains capacity and is able to conduct her own affairs, or when the signer dies. Cannot be used to make health care decisions. Usually requires either a Notary or two witnesses to signing.

Health Care Proxy (in some states called a “Durable Power of Attorney for Health Care” or “Health Care Power of Attorney”): Allows a competent adult to name another person—called her “Health Care Agent”—to make health care decisions in case of future mental incapacity to make one’s own health care decisions. Cannot be used to make business or financial decisions or conduct business transactions. In Massachusetts, only requires two witnesses to signing. Legal when signed, but Agent can act on behalf of the signer only when the signer’s attending physician determines that the signer can no long make her own health care decisions.

Guardian: Appointed by a judge after a hearing in court about the adult’s inability to manage his own business, personal, and/or health affairs. Powers and limitations of the named guardian are set by the court and are—by law—to restrict the freedom of the adult as little as possible. Actions of the guardian are monitored regularly by the court. Unless otherwise specified by a judge, the health care decisions made by an Agent under a Massachusetts Health Care Proxy would be honored over decisions make by a guardian. The Commonwealth makes a great deal of information about guardianship available online.

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Can my patient name both her husband and her daughter as co-Health Care Agents?

No. The Proxy law allows a competent adult to name “an agent” and “an alternate.” And indeed, the primary reason for having a Health Care Proxy law in the first place was for both the patient and the attending doctor to be confident that decisions were being made by a single person–not a committee! It’s probably a foregone conclusion that the person named as Agent and the person named as Alternate will talk with each other anyway. But you could encourage your patient to talk with both her daughter and her husband and based on that discussion, choose a #1 and in the alternative (unwilling, unable, out of the country, etc), a #2. This may be inconvenient or awkward, but that’s what the law allows. It not a matter of using a particular form. It’s a mater of law.

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As a social worker, can I be a witness to our resident’s Health Care Proxy?

Yes! “The Task Force recommends that employees of health care institutions be permitted to serve as witnesses to the execution of Health Care Proxies. This recommendation is based on the fact that there will be situations within health care institutions where a person desires to execute a proxy but is unable to provide for necessary witnesses. This person may turn to the staff of the institution, particularly social workers, nurses, clergy, and others to act as witnesses. The role of witnesses under the Act is to affirm in writing that the Principal appears to be:

•  at least eighteen (18) years of age;
•  of sound mind;
•  and under no constraint or undue influence.

The only stated limitation in the Act pertaining to a person serving as a witness is that no person may be named both as the Health Care Agent and as a witness to the same proxy.

The Task Force urges health care institutions, as part of their implementation process, to educate staff on the legal significance of witnessing any legal documents, including a Health Care Proxy. A witness may act in an individual capacity or as a representative of the institution in which she or he is employed, to the extent permitted by the institution. As part of the education process, staff should be informed that if the Health Care Proxy is challenged in court, they may be required to testify regarding the three points above. Members believe that this approach furthers public policy to enhance the ability of the patient to exercise his/her right to execute a Health Care Proxy.” (Answer above from the ‘Consensus Report’ of the Massachusetts Health Care Proxy Task Force, May 1992. The Task Force was composed of clinicians, counsels and senior representatives from 16 statewide health care organizations and professional associations, all listed on the back of the Massachusetts Health Care Proxy form.)

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Should I honor my patient’s Rhode Island Durable Power of Attorney form?

Yes. Health care organizations in Massachusetts can honor advance directives completed in other states so long as they are consistent with Massachusetts law. Rhode Island’s DPA/HC is very similar to the Health Care Proxy, and requires either two witnesses or a Notary’s signature.

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Which Health Care Proxy should we honor–the one our resident signed on admission a month ago, or one he signed last week but has only one witness signature?

There are really two questions here: Which Proxy should be honored since you have two—the newer one or the older one? Also, should you honor a Health Care Proxy that has not been completed or “executed” properly?

The first question is easy. Signing a new Health Care Proxy automatically revokes or cancels any earlier Proxy. For the second question, however, the Health Care Proxy law says: “For the purposes of this section, every adult shall be presumed to be competent and every health care proxy shall be presumed to be properly executed unless a court determines otherwise.” So your resident’s newer Proxy is valid and can be honored unless a court–not anyone else–determines that it is invalid. Your decision to challenge the newer form may depend on several things. Has your resident named the same Agent and Alternate Agent in both forms? If not, is there a conflict between or among Agents and Alternates which might encourage you to seek clarification from a judge of the Probate Court? Has the first Proxy already been activated by the attending physician’s written determination that your resident is incapacitated? Is an Agent or Alternate Agent making health care decisions for your resident in ways that you believe are inconsistent with your resident’s health care preferences, beliefs or values? The larger or more immediate these questions become, the more sense it might make to get guidance from the Massachusetts Probate Court for your area.

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Should we honor a Health Care Proxy with the name of a health care organization at the top of the form?

It has been the policy of nonprofit Massachusetts Health Decisions not to comment on the validity of a form we have not seen or reviewed. It has also been our policy to discourage health care facilities from using a Massachusetts Health Care Proxy form as part of its marketing or “branding” strategy. Residents of Massachusetts should have confidence that once they have completed a Health Care Proxy, it will be honored by any health care organization, agency, facility, or professional in the Commonwealth. When a facility puts its name or logo at the top of a form, it is implicitly encouraging signers to use that facility only, or complete an entirely new form. In fact, a valid Health Care Proxy is valid until the signer revokes it, or until the signer dies. A person does not have to complete a new Health Care Proxy every time she seeks care from a different health care organization. The Massachusetts Health Care Proxy form distributed by nonprofit Massachusetts Health Decisions has been in constant use since 1991 and will be both recognized and accepted by any health care facility in Massachusetts.

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Can my patient complete a Proxy for his son in a Massachusetts college?

If your patient’s son is a minor, under the age of 18, your patient is still authorized to make health decisions for him as his father. But if the son is over 18, he’s considered an adult with legal authority to make any and all decisions about his own health care. You could encourage your patient to talk about this issue with his son and provide him with a Massachusetts Health Care Proxy form. Most colleges and university seem reluctant to give parents or students information about advance directives, possibly believing that parents wouldn’t want to contemplate the possibility that their son or daughter might become ill or injured while in their “care.” In fact, while a university might notify a student’s parents of a sudden hospitalization, the adult student would be treated like any other adult patient in the hospital. HIPAA requirements would prohibit the hospital from sharing protected health information about the student, even from his own parents. Unless, of course, the student had granted his parents information access by means of a HIPAA waiver, or more easily with a Massachusetts Health Care Proxy.

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What’s the difference between “capacity” and “competency”?

The general rule of thumb is that legal competency can only be determined by a judge pursuant to a hearing in court. By declaring a person incompetent and appointing a guardian, a judge is effectively taking away a person’s civil liberties and may severely restrict a person’s freedom to make his own decisions and conduct his own affairs. It is, therefore, treated as a serious matter by a judge based on assessments by qualified clinicians and others.

The capacity to make health care decisions is a much narrower focus. Generally speaking, a person is viewed a capable of making her own health care decisions if she can:

•  understand the relevant information, such as the recommended treatment and alternatives, including making no choice at all, and the risks and benefits of these options;
•  appreciate the current situation and its consequences;
•  reason rationally; and
•  voluntarily communicate a choice.

Here’s a good article on how to make determinations of decision making capacity in the New England Journal of Medicine.  To assess the patient’s understanding, it is useful to have the patient repeat information back to you in their own words. In many situations, especially during care at the end of life or during the course of a mental illness, the patient may have only intermittent capacity to make her own decisions. These decisions should be honored.

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Can a nurse practitioner make the written determination of incapacity to activate a Health Care Proxy?

No. The Health Care Proxy law (MGL 201D) says that the patient’s “attending physician” is the only person who can make that determination, though she should enlist the help of a specialist if the patient’s incapacity is due to a mental illness or developmental disability.

The determination of capacity made for a Medical Certificate (MPC 400), however, is very different. A Medical Certificate is submitted to a judge for her possible appointment of a Guardian or Conservator, and is good for 30 days only. A Medical Certificate can be signed by a physician, licensed psychologist, or a psychiatric nurse clinical specialist.  A 2010 revision to the Probate Code adds nurse practitioner to the list of people authorized to sign a Medical Certificate. But note that it is the judge, not the clinician, who is the final decision maker. A guardianship proceeding effectively removes the person’s civil liberties by appointing a special surrogate called a guardian. This two-step process is very different from the Proxy where the attending physician is the only person making a determination of incapacity. Some non-physician clinicians may be equally qualified to make a determination of capacity. But unless the legal process is changed significantly, the Health Care Proxy and the Medical Certificate will operate differently and for different purposes.

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Who can make health care decisions for our incapacitated resident?

The only people who are legally authorized to give voluntary consents or refusals are 1) a competent adult for himself; 2) a parent for his child; 3) a legally emancipated minor for himself; 4) an Agent designated in a valid Health Care Proxy; and 5) a Guardian appointed by a judge in Probate Court. If your resident never completed a Health Care Proxy, and doesn’t have a guardian, then you or a family member will have to petition the court to have a guardian named for your patient.

Unless a spouse or other family member has been named as an Agent in a Health Care Proxy, or as a guardian by the court, the spouse or family member is NOT legally authorized to make health care decisions for your resident. Nor is a close friend, co-worker, “responsible party,” or person named in a general Power of Attorney–typically used to authorize conducting business affairs, but not to make health care decisions. You should always ask for and receive a copy of any document the prospective decision maker says they have.

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Can my patient’s Agent make mental health treatment decisions?

Yes. The Health Care Proxy law specifically defines “health care” as involving the prognosis, diagnosis and treatment of a physical or mental illness. The appointed Agent may make mental health treatment decisions, even those that involve restrictive treatment that otherwise would have required a special proceeding in court (a so-called Rogers hearing). For the reasoning of this position, see the letter from the Attorney General’s office to the Massachusetts chapter of the National Academy of Elder Law Attorneys.

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Can an Agent get medical information about our patient, even if our patient never listed the Agent on his HIPAA waiver?

Yes. Nothing in the HIPAA law was meant to alter advance directive laws in each of the states. All Health Care Proxy and health care power of attorney laws allow appointed agents to get all information about a patient necessary to make fully informed and voluntary decisions about treatment options. A separate HIPAA waiver is not necessary. Here’s more information from the US Department of Health and Human Services.

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My patient died. Can her Agent donate my patient’s organs?

No. An Agent’s authority to act on behalf of your patient ends when your patient died. However, your patient may have already indicated her wish to be an organ donor by registering as a donor on her driver’s license or online at the DonateLife registry. By registering, she ensured that her decision to donate would be honored in a timely manner when she died. You can read more at the website of the New England Organ Bank,  a nonprofit organization that coordinates organ and tissue donation in all or part of the six New England states and Bermuda.

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Can an Agent of an invoked HCP transfer that right to another person?

By “invoked” you mean that the resident has been determined in writing by her attending physician that she doesn’t have the temporary or permanent capacity to make her own health care decisions. And that the named Agent has been authorized to now make decisions for your patient.

Regarding the ‘rights’ of the Agent: The Agent doesn’t have any rights—only whatever authority the Proxy signer gave by means of the Health Care Proxy document. The signer (known as the Principal–your resident or any competent adult), has the legal right to give the authority to make health care decisions to another person called the Health Care Agent, in the event of his/her future incapacity. The signer also has the legal right to appoint a second person–an Alternate Health Care Agent. The Agent and Alternate have no right to pass their appointment on to another person and may not do so. If the Agent can’t or won’t act as a decision maker, then the authority is passed by the attending physician to any named Alternate Agent. If the Alternate Agent won’t or can’t act, and if the Proxy signer is still incapable of make his/her own decisions, then, quite simply, there is no legal decision maker. Whether initiated by the facility or the family, there will have to be a full competency hearing in court and a temporary or permanent Guardian appointed by the court. In this event, I would strongly encourage you to seek guidance of an attorney skilled in health and elder law.

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Can the Agent give permission for our facility to release information to other family members regarding our patient’s medical condition?

The role of the Health Care Agent is to make health care decisions concerning the diagnosis, prognosis or treatment of a physical or mental health problem. In that regard, the Agent can obtain health care information, included protected information, from the Principal’s health care provider in order to make informed and voluntary choices on behalf of the Principal.

Unless your patient/resident has specifically requested that certain kinds of information NOT be made available to your patient’s Agent, the Agent is the legal equivalent of your patient and is legally entitled to ask for and receive any and all information from you or any other health care provider regarding your patient’s health. The Agent could also share information with anyone that the patient himself could. The Agent can also authorize the facility to release protected health information on behalf of the patient. The facility cannot withhold information from the Agent simply because, for instance, it believes the Agent might share the information with your patient’s family members. While the facility can withhold information from the family members directly, the facility cannot withhold information from the Agent nor can the facility refuse to share information authorized by the Agent when the Agent is doing so on behalf of your patient.

For example, it may be that the Agent simply doesn’t know what the Principal’s wishes might be in a particular situation. In that case, the Agent is legally bound to make health care decisions for the Principal based on the Agent’s determination of what would be in the Principal’s “best interests.” So the Agent might reasonably give a family member information about the Principal’s present medical condition so as to get the family member’s input: “What do you think your Dad would want under these circumstances? You know him fairly well. What’s your best guess?”

The HIPAA section of the US Department of Health and Human Services website has a great deal of useful, and searchable, information about the privacy law.

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Can we contact the Alternate if the Agent hasn’t responded to phone calls in several weeks?

Yes, absolutely! Here’s a quote from the second paragraph of Section 2 of the Health Care Proxy Law: “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 pursuant to other requirements of this chapter.” (Emphasis added)

As a practical matter, we suggest that you document repeated attempts to reach the Agent by phone, indicating dates and times. If you’re unsuccessful, and the situation is not a medical emergency, we suggest writing to the Agent by US mail with confirmation of receipt. If the situation demands a more immediate decision by an Agent, then we suggest documenting the unsuccessful attempts to get the involvement of the Agent, and immediately move forward to speak with the named Alternate Agent, if any.

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As a physician, what if I don’t agree with the Agent’s decision about care for my patient?

The Health Care Proxy law (see sections 14 and 15) says that you need not honor an Agent’s decision if it would violate your moral or religious views. However, if you do refuse to honor the Agent’s decisions, you must transfer your patient to the care of a another physician in the same or other facility reasonably accessible to your patient’s family who IS willing to honor the Agent’s decision.

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Isn’t refusing end-of-life care suicide?

No. Suicide occurs when a person voluntarily and intentionally takes his own life. While suicide, or attempting suicide is no longer considered a criminal act, causing or assisting a suicide remain a criminal offense in most states. In recent years, four states have passed laws allowing for physician-assisted suicide: California, Oregon, Washington, and Vermont. Montana allows the practice because of a court ruling.

Refusing care, even care necessary to keep a person alive, is a constitutionally protect right of all competent adults in the United States. Adults have the right to give their informed and voluntary consent, or refusal, to any recommended treatment. Whether the person’s preference for care is shared by everyone or no one makes no difference. A competent person has the legally protected right to choose the kind of care they find acceptable or preferable. Adults do not have the right, however, to demand care that the care provider believes is inappropriate or actually harmful. By extension, the Agent appointed by a person in her Health Care Proxy, has all the rights that the signer had. Unless specifically limited in the document by the person herself, the Agent can consent to or refuse any and all recommended medical treatment, even treatment that could keep the person alive.

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Why can’t our practice simply make copies of the form to distribute to patients?

Nonprofit Massachusetts Health Decisions developed the form it has published in English and 15 additional languages including Braille and American Sign Language since 1991. MHD registered its copyright with the Library of Congress. As a 501(c)(3) non-profit organization, MHD relies on the income from the sale and licensing of its publications to sustain its education and consultation activities. MHD also acts as a statewide resource center for inquiries about the Health Care Proxy from members of the public as well as health care and other professionals. We have been pleased to sell and license copies of our publications to hospitals, hospices, health plans, professionals, and professional associations for many years. Under license, MHD has provided copies for agency use for hard copy reproduction, internal server availability, and public distribution via the Web. However, when individuals, organizations, or agencies reproduce and distribute MHD’s publications without its permission or authorization, MHD has been compelled to protect its interests vigorously. We will continue to do so.

MHD makes single copies of the Proxy available for individual patients at no cost. Complete information is also available in many additional languages.  You can purchase forms and other publications at our on-line store, as well as download a current pricelist and get information about purchasing a license to reproduce the Proxy on your server or website.

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