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What is the Massachusetts Health Care Proxy?
What does the Health Care Proxy Law allow?
Do I have to complete a Health Care Proxy?
Who can complete a Health Care Proxy?
Can I complete a Health Care Proxy for someone else?
Which form should I use?
What comes first?
Whom shall I choose as my Health Care Agent?
Wouldn’t my spouse, adult child, or partner be my decision maker, even without a Proxy?
Who cannot be my Agent?
Can I name more than one person as my Agent?
What if I don’t have someone to name as my Agent?
What instructions should I give my Agent?
How will my Agent know what to do?
How do I fill out a Health Care Proxy?
Who cannot be witnesses?
Do I need a lawyer or a Notary Public?
How many copies should I make? And who gets them?
When does the Health Care Proxy become effective?
Can my doctor refuse to honor my Agent’s decision?
Is the Health Care Proxy the same as a “Living Will”?
Is the Proxy the same as a Durable Power of Attorney?
Can I make changes on the document?
Will my Proxy be honored in other states?
How do I cancel the Proxy if I change my mind in any way?
What is the Massachusetts Health Care Proxy?
The Health Care Proxy is a simple legal form that allows you to name someone you trust to make health care decisions for you, according to your wishes, if—for any reason and at any time—you become unable to make or communicate those decisions yourself.
What does the Health Care Proxy Law allow?
Under state and federal law, you have basic rights to decide about your own health care. These include a right to be told about your illness, the treatment that your doctor is recommending, along with its possible risks and benefits, and the right to freely say yes or no to any treatment. You have these rights at all times, and they apply to all recommended treatments, even treatments that could keep you alive.
If, because of an illness or accident, you become unable to make your own health care decisions, you don’t lose those rights. But in order to make them work, they will have to be put into action by someone else. The Health Care Proxy Law (Chapter 201D of the Massachusetts General Laws) allows you to choose the person who will exercise your right to make your own health care decisions. That person is called your Health Care Agent.
Do I have to complete a Health Care Proxy?
You don’t have to complete a Health Care Proxy on admission or at any other time in order to get medical care from any health care provider. The federal Patient Self Determination Act requires almost all hospitals, nursing homes, health plans, and home care agencies to ask people if they have filled out an “advance directive” (the general term for health care proxies and living wills). In Massachusetts, they will ask: “Have you completed a Health Care Proxy?” If you have filled out a Health Care Proxy or any advance directive, give a copy to your doctor, hospital or health plan. You have the right to receive the same type and quality of health care whether or not you complete a Health Care Proxy. Filling out a Health Care Proxy will not affect your health or life insurance in any way. No one can make you sign a Proxy, and no one can tell you what to include in it.
Some people, however, may not want to complete a Health Care Proxy. Their cultural background, religious beliefs, or the way important decisions are made in their family, may all make it difficult to name an Agent and talk about health care choices. But not talking about these things could become a heavy burden for the person who would have to act for you if an accident or illness prevented you from deciding for yourself.
Who can complete a Health Care Proxy?
Any competent adult age 18 or over has the right to complete his or her own Health Care Proxy. As a rule of thumb, the law considers you to be a competent person unless a judge has ruled that you are legally incompetent to act in your own best interests.
Can I complete a Health Care Proxy for someone else?
No. The only person who can complete a Health Care Proxy is a competent adult for themselves. If a person has already become incompetent (a judge has ruled that they are unable to care for themselves), he cannot complete a Health Care Proxy, nor can someone else complete one for them. However, if the person is mentally competent but physically unable to sign a Health Care Proxy, they can have another person sign at her direction. Parents of a minor child cannot complete a Proxy for their child. But with some exceptions, parents are the legal decision makers for their children under age eighteen.
Which form should I use?
Use the Health Care Proxy form that will be instantly recognized, accepted, and implemented by any health care facility in the Commonwealth. Nonprofit Massachusetts Health Decisions developed and has published the Massachusetts Health Care Proxy continuously since 1991, and makes the Proxy available to health care organizations and the public in 15 languages, including Braille and American Sign Language. Proxy forms and other publications are available here.
What comes first?
To download a PDF of this ‘how to’ graphic for yourself, or to use in your organization, CLICK HERE.
Whom shall I choose as my Health Care Agent?
We believe that your choice of persons to be your Agent and Alternate should depend on two main factors: Can you talk openly with these persons about your personal choices for health care, including such difficult issues as mental illness, dying and death, nursing home care, your own sense of dignity and self-worth, and your personal values or religious beliefs? And, will your Agent and Alternate be your strong supporters, able to give your views and preferences even if some people don’t agree? The ideal Agent will be someone who knows you well, understands your values and beliefs, and will carry out your wishes.
The Proxy form has spaces for you to name your Health Care Agent with his or her current address, telephone numbers, and email address. If your Agent might not be available to act for you at all times, you can also name an Alternate Agent. The form has optional spaces on the back for these people to sign their names stating that they’ve talked with you, understand and accept the responsibility of being your Health Care Agent or Alternate, and pledge that they will try to act according to your wishes. These signatures are not legally required and do not have to be signed at the time you sign the document in front of witnesses. However, we strongly encourage you to name people with whom you have talked about your wishes and who agree to act for you. Giving them a chance to sign is a good way to insure that you and your Agent have talked and that they are willing to be your Agent.
Wouldn’t my spouse, adult child, parent or partner be my decision maker, even without a Health Care Proxy?
Legally, there are only a very few people who can make decisions about your health care. If you are able to make your own health care decisions, you have the absolute right to do that. Your doctor will ask you about your health care choices. But if you can’t make your own decisions, other people who could have the legal authority to act for you are the person you name in your Health Care Proxy or a guardian named by a judge to care for you. If you become unable to make or communicate your own health care wishes, those are the only two people who would have the full legal authority to act for you. Unless you had named your spouse, adult child, parent, partner or friend as your Agent in your Health Care Proxy, or a judge had named that person as your legal guardian, that person would not automatically have the right to make choices on your behalf.
Who cannot be my Agent?
Certain people cannot be your Agent. Someone who owns or works for a hospital or nursing home where you are now a patient or resident (or applying to be a patient or resident) is not allowed unless that person is also related to you by birth, marriage, or adoption.
We urge you not to appoint your attending physician as your Agent because they are the person who will determine whether you are still able to make or communicate health care decisions. If you do appoint your attending physician as your Agent, some other doctor will have to determine your capacity. We suspect that few doctors would agree to be Agents for their own patients. If you do choose a physician, try to get someone other than your attending physician. A spouse, friend, partner, adult child, or other family member—even someone who will benefit under your will—are all acceptable Agents.
Can I name more than one person as my Agent?
No. Name only one person as your Agent and one person as your Alternate. Naming two people as co-agents might present a legal problem and could set up the kind of conflict about your care that the Health Care Proxy law was designed to avoid. Be sure to tell both those people and others about your choice of Agent and your health care wishes.
What if I don’t have someone to name as my Agent?
If you don’t know or trust someone enough to be your Agent, you can still put your own thoughts on paper. If you become unable to make your own health care decisions, your doctor or the court will want to act according to your wishes—whether they come from your Agent by means of a Proxy, or because you took the time to write them down yourself. You can fill out a Living Will form or simply write a letter or memo and sign and date it. It would help, of course, to have someone witness the fact that you were the person who wrote and signed the document or statement. Give copies to your doctor and anyone else who might be interested in your care.
What instructions should I give my Agent?
The Health Care Proxy law allows your Agent to make all decisions about your physical and mental health care for you if you become unable to do so yourself. This even includes decisions about life-sustaining treatment such as artificial or “tube” feeding, being on a breathing machine, and experimental treatments. Your Agent has full authority to act for you unless you limit the kinds of decisions you allow your Agent to make.
If you have any specific wishes, we suggest that you tell your Agent in a conversation or in a separate letter. For example, you may want to instruct him/her that you want all reasonable care if you are injured and unconscious but there is a good chance that you will recover completely. It might be your wish that if you become terminally ill or go into a permanent coma, you want only “comfort measures” and no life-prolonging treatments. These choices are up to you. We believe that you should make your Agent aware of these specific choices, but you should not list them on the Proxy form itself. If there are specific limits you wish to make on your Agent’s authority, put them in the blank space provided.
Our philosophy in using the Health Care Proxy has been simple: Choose a person you trust completely, and then give that person all the authority he will need to act according to your wishes. You can’t predict all the possible situations that would require your Agent’s help. So let your Agent know how you feel about illnesses or conditions that concern you most.
We urge you not to write vague statements like “No heroics” or “No machines.” Without more detail, that phrase won’t help your Agent or your doctor. What’s “heroic” to you might be essential treatment to someone else. And what’s heroic today might be commonplace tomorrow.
Your physician, your family, and possibly your clergy person and your lawyer should all be made aware of your health care preferences. A talk with your doctor is probably the best starting place for this discussion. The point of filling out a Proxy is to insure that your wishes are respected, and not have to seek permission of the court.
Make sure that everyone who could be involved in a dispute knows that you are completing a Health Care Proxy. They should also know whom you have chosen as your Agent and Alternate. Even if they don’t agree with your choices, they should at least respect your wishes. Then, if the need arises for your Agent to make choices for you, neither the document nor your choice for an Agent will be a surprise to family members, your physician, or other people important to you.
How will my Agent know what to do?
Your Agent will make decisions for you only after talking with your doctor or health care provider, and after carefully weighing all the choices regarding your present and future condition and the recommended treatment. Your Agent must make health care decisions according to what they believe your wishes would be, including your religious or moral beliefs. If your Agent doesn’t know what your wishes would be in a particular situation, they must decide based on what they believe would be in your best interests.
Remember, your Agent has the authority to do whatever you could do if you were able. Your Agent can see your medical record, even confidential records if necessary. If it would be your wish, or if your Agent thinks it would be in your best interest, they can get you another doctor, have you moved to another health care setting, get more aggressive treatment or refuse unwanted treatment, or even seek treatment that is against medical advice.
How do I fill out a Health Care Proxy?
Completing a Proxy (lawyers call it “executing” a legal document) is a simple matter, but the details are important if you want the document to be honored. Complete instructions are on page 2 of the Massachusetts Health Care Proxy. You (the “Principal”) can begin completing the document at anytime by filling in the blanks identifying yourself, and naming your Health Care Agent and an Alternate. However, you must sign your name and date the form in front of two adult witnesses. If you are physically unable to sign your name, you may direct someone other than your witnesses to sign your name for you, as long as your witnesses see that happen.
By signing their names, witnesses affirm that the Witness Statement is true: They each saw you sign the form, that you seemed to be at least 18 years old and mentally alert, and were not forced into signing in any way. It is a good idea to have witnesses who know you and know your mental capacity in case someone later suggests that your Proxy is not valid because you weren’t of sound mind when you signed it.
Who cannot be witnesses?
The Proxy Law says that only your Agent (and presumably your Alternate) cannot be a witness. A witness can be anyone else: a relative, neighbor, friend, or business associate. Witnesses don’t have to know the contents of what you’ve signed, only that they watched you sign your name.
Most health care facilities allow employees such as doctors and nurses to serve as witnesses to your Health Care Proxy. Some, however, do not. In that case, you will have to get two people from outside the facility to be your witnesses.
Do I need a lawyer or a Notary Public?
No, a lawyer or notary is not required and you do not need to file your completed Proxy with any state or government agency. The Proxy was designed to be completed by any competent adult and two witnesses. You may, however, want to talk with a lawyer about the Health Care Proxy, Durable Power of Attorney (for financial affairs), a will, and other matters of advance planning. Many lawyers will provide free help with the Health Care Proxy as part of an overall estate plan.
How many copies should I make? And who gets them?
After you fill out the Proxy form, remove the instruction page and give it to your Agent. Then make at least five copies of the form itself. (Note that just above your signature, we’ve added: “Photocopies will be given the same force and effect as originals.”) Keep the original yourself in an easy-to-find place with other important papers—not in your safe deposit box. Then give a copy to each person involved:
- your Agent and Alternate,
- your physician,
- your health plan or hospital for your medical record, and
- perhaps your family, lawyer, and clergy person.
When does the Health Care Proxy become effective?
The document is legal when signed and witnessed. But your Agent can act for you only after your attending physician determines in writing that you are “unable to make or communicate your own health care decisions.” This might be caused by an accident that leaves you temporarily unconscious, a mental illness, a stroke or heart attack, or a more life-threatening condition.
If you again become able to make your own health care decisions, you will be regarded as the decision maker. And if you again lose that ability, your doctor will make another written determination and call your Agent. You don’t have to complete another Proxy. Remember, your Agent acts for you and according to your wishes only when and for as long as you cannot.
Can my doctor refuse to honor my Agent’s decision?
If your doctor disagrees with your Agent’s decision on moral or religious grounds concerning a recommended treatment or lack of treatment, they can refuse to honor your Agent’s decision. In that case, however, your doctor must transfer you to another doctor who will honor your Agent’s decision.
Is the Health Care Proxy the same as a “Living Will”?
No. A Living Will is a written statement to your family and physician listing your wishes when you are not only unable to make or communicate health care decisions, but are also terminally ill and your doctor believes you are within six months of dying.
The Health Care Proxy applies to all situations, including terminal illness, where choices must be made by others about your health care. The Proxy would be important in any situation where you were unable to talk with your health care provider and make your own choices. You might be unconscious from a car accident, mentally ill, having a stroke or a bad reaction to a medication, or many other situations. The Proxy also puts your wishes into the hands of someone you trust who will be present to talk with your physician if you cannot, rather than simply on a piece of paper which may be confusing. If you’ve already completed a Living Will, keep it. It is good evidence of your wishes, even though it may not be legally enforceable in Massachusetts at this time.
Is the Proxy the same as a Durable Power of Attorney?
They are very similar. The Durable Power of Attorney (DPA) allows you to name another person to conduct your business affairs for you if you are unable. It is called a “durable” power of attorney because it stays in effect when you become unable to act for yourself. (A regular power of attorney becomes invalid if you become unable to conduct your own affairs or die.)
All states have a DPA law, and many states say that it can be used for both financial and health care matters. In some states, a form like the Massachusetts Health Care Proxy is actually called a “Durable Power of Attorney for Health Care.” Massachusetts, however, chose to have two different laws: a Durable Power of Attorney for business matters, and a Health Care Proxy for health care, even though they work in similar ways. Most lawyers would advise you to have both documents.
Can I make changes on the document?
Basically, no. You may update the address or phone numbers of your Agent or Alternate if necessary. If you want to name a different Agent or make any other changes, you must complete an entirely new Proxy. This will automatically “revoke” or cancel the old one.
Will my Proxy be honored in other states?
“Advance directives,” such as the Health Care Proxy and Living Wills, are based on individual state laws. Your Massachusetts Health Care Proxy will probably be honored in other states, especially those with similar laws. But if you spend much time in another state, also fill out the advance directive that will work there. You don’t have to be a Massachusetts resident to fill out a Health Care Proxy. The document is legally binding in Massachusetts even if you live in another state but get your health care here.
How do I cancel the Proxy if I change my mind in any way?
You can cancel, or “revoke,” the document at any time in many ways. Tear up the original or any copy or all copies. Tell your Agent, Alternate, nurse, doctor, or lawyer that you’re revoking your Proxy. Or do anything else that clearly shows that you no longer want the Proxy to be in effect. We strongly suggest that if you want to revoke your Proxy, you should either write it down or tell someone face to face rather than relying on a telephone conversation.
If you fill out a new Proxy, any earlier Proxy is automatically revoked. Your Proxy is also automatically revoked if you legally separate from or divorce your spouse who was named as your Agent. Unless you revoke it or it is automatically revoked, your Proxy remains in effect until you die. But you should review it every year to make sure the names, addresses, and telephone numbers are current, and that the people you’ve named as Agent and Alternate are still willing to act for you if necessary.