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Appointing a Health Care Agent under Massachusetts Law

April 9, 2010

If you are at least 18 years of age you can execute a Health Care Proxy, appointing someone to be your “Health Care Agent.”  Under this law, which became effective in Massachusetts on December 19, 1990, your Health Care Agent will be empowered to make health care decisions for you, if and when a physician determines that you are incapable of doing so.

The law is designed to minimize or eliminate the possible need for guardianship proceedings if you become incapacitated and are unable to make your own health care decisions. The Attorney General of the Commonwealth of Massachusetts has taken the position that under this law a Health Care Agent can make every type of health care decision, including the administration of antipsychotic medications.

You can appoint just about anyone to be your Health Care Agent.  The main exception would be an unrelated person who works at the hospital or other medical institution where you are staying.  Just as you should appoint a backup choice as executor in your will or as trustee in your trust, you should also name an alternate Health Care Agent, who will serve only if your first choice is unable or unwilling to do so.  Just as in a will, two witnesses must be present when you sign this document, which is known as a Health Care Proxy.  Any person who is appointed Health Care Agent or alternate Health Care Agent in the Proxy cannot serve as a witness.

Just as you can with a will, revocable trust or durable power of attorney, you can revoke your Health Care Proxy.  In fact, if you name your spouse as your Health Care Agent and become legally separated or divorced, the law states that the Health Care Proxy is automatically revoked.

Under the federal Patient Self-Determination Act, which took effect on December 1, 1991, health care institutions are required to inform patients about your health care rights upon admission, so blank Health Care Proxy forms are usually presented to patients, but manypatietns do not need to sign a new one.  If a Health Care Proxy has been executed in the past and you do not wish to make changes, there is no need to sign a new one.  You should make sure you bring a copy of your Health Care Proxy with you whenever you are admitted to a health care facility.

The decisions of the Health Care Agent are supposed to be based on what you would have wanted for yourself.  This process is known in guardianship law as “substituted judgment.”  If the Agent cannot determine what you would have wanted, then the Agent is empowered to make decisions which the Agent believes to be in your best interests.

You can limit the Agent’s authority.  You may wish to do so if you believe the Agent does not hold the same moral or religious beliefs as you do.  While the Massachusetts law is not meant to condone suicide or mercy killing, it does permit the Agent to allow you to undergo what the law terms the “natural process of dying.”

Even though a Health Care Proxy is not a living will, which states your wishes for or against life-prolonging treatment, you can include language similar to a living will in your Health Care Proxy as a way of explaining your wishes to the Health Care Agent, and to eliminate any guilt which may later haunt a Health Care Agent who is called upon to make the difficult decision as to whether you should be allowed to die.  You can also include in your Health Care Proxy expressions of how your religion would approach critical issues.  For example, the following links provide a Christian Scientist adaptation  and a Jewish adaptation of the Massachusetts Health Care Proxy.

One of the most difficult decisions for an Agent would be whether to request removal of artificial feeding in the case of a “persistent vegetative state.”  Patients in this condition frequently appear to be staring, and have sleep-wake cycles and reflex movement, but cerebral function and cognitive ability is permanently lost.  (An overwhelming majority of the persons with whom I have discussed this issue in my law practice would not want to be kept alive in such a condition.)  The persistent vegetative state was an important issue in the 1990 United States Supreme Court case of Cruzan v. Director, Missouri Board of Health.  In that case, a woman named Nancy Cruzan had been in an automobile accident which had left her in such a condition.  By remaining connected to the tubes which gave her food and water, she could have lived an essentially meaningless life in a gradually deteriorating condition for 30 years or more.  The Court decided that the tubes could be removed, but only if her family could prove through clear and convincing evidence (as required under Missouri law) that she would have wanted to have the tubes removed.  (Her family met this burden of proof, the tubes were removed, and she died on December 26, 1990).

More recently, the persistent vegetative state was involved in the Florida case of Terri Schiavo, who died March 31, 2005.  Despite the national publicity of the case, end-of-life experts estimate that the percentage of the United States’ population that has dealt with such issues in writing has not changed, and remains 20-30%.

While retirees and senior citizens are the persons who are most likely to execute a Health Care Proxy, many younger adults should also consider doing so.  Those who feel that they are too young to be concerned about such issues should bear in mind the cases of Nancy Cruzan and Terri Schiavo.  The problems that caused their persistent vegetative states had occurred when each of them was only 26 years old.

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