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Does a Health Care Proxy Trump Guardianship

By Harry S. Margolis

We received an inquiry from a nursing home employee about whether a guardian needed court approval to move a nursing home resident to another facility when she also had a health care proxy. Here, we will give a basic answer. (If you need more specific information, don’t hesitate to get in touch.)

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Under Massachusetts guardianship law, guardians must first seek court approval before placing the protected person in a nursing home. However, agents under health care proxies have the right to make health care decisions for individuals and, presumably, this would include placement in a nursing home.

So, the question becomes: which governs, the health care proxy or the guardian? Here’s the answer:

The guardianship statute states that a court-appointed guardian may not revoke a health care proxy without court authorization. If a health care proxy is in effect, absent an order of the court to the contrary, a health care decision of the agent takes precedence over that of a guardian.

In short, individuals can avoid the extra cost of seeking court approval for nursing home placement if they have appointed an agent under a valid health care proxy. However, this can get complicated in practice.

Just as anyone can create a health care proxy, anyone who has that capacity can revoke one. When an individual refuses to comply with a move to a nursing home approved by the agent under the health care proxy, this may be deemed a revocation of the original instrument. However, the individual must be competent to revoke the health care proxy. If there’s a dispute about the individual’s capacity to revoke the proxy, the parties may end up in court under in any case.

An agent (or hospital) can ask the court to “affirm” the health care proxy when they feel the individual is not competent to revoke it. This proceeding could become equivalent to guardianship hearing.

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