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FAQs About Your Health Care Proxy – Massachusetts

By Rebecca J. Benson

Everyone over the age of 18 should consider having a health care proxy. In case you ever become incapacitated, it is important that someone you trust has the legal authority to communicate your wishes concerning medical treatment.  This is true especially if you disagree with family members about your treatment.  By executing a health care proxy, you ensure that an agent you trust has authority to make decisions on your behalf.  Following  is a list of frequently asked questions (and answers) that often come up about health care proxies:

• Does the patient need a health care proxy if she or he already has a living will?

Yes, because only the health care proxy is formally recognized under Massachusetts law. The living will or medical directive is a statement of a patient’s wishes and preferences, but it is not binding on providers.

Can a patient be required to designate a health care agent?

No, a provider may not require or prohibit the execution of a health care proxy as a condition for providing health care services or insurance.

When does a health care proxy take effect?

The health care proxy takes effect only if and when the patient’s “attending physician” makes a written determination that the patient lacks the capacity to make or communicate health care decisions. If the incapacity is caused by mental illness or developmental disability, the attending physician must have (or must consult with a provider who has) specialized training or experience in diagnosing or treating  mental illness or developmental disability of the same or similar nature in making the determination.

• Does the physician have to give notice of the incapacity determination?

Yes, the health care proxy statute requires the physician to give oral and written notice of an incapacity determination to a) the patient “when there is any indication of the [patient]’s ability  to comprehend the notice,” and b) the agent.

Can a patient revoke a health care proxy?

Yes, the health care proxy statute allows a patient to revoke a health care proxy by notifying  the agent or health care provider orally or in writing or “by any other act evidencing a specific  intent to revoke the health care proxy.”

How does an agent decide whether to consent to treatment on behalf of the patient?

The agent is supposed to honor the patient’s wishes, to the extent they are known to the agent. The agent has an obligation to review the patient’s living will and any other advance directive that the patient may have signed, and to talk with family members and health care providers. After “full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects, ” the agent is required to make decisions in accordance with the agent’s assessment of the patient’s own wishes (a subjective test). If the patient’s wishes are unknown, the agent must make decisions in the best interests of the patient (an objective test).

What if a patient is being abused or exploited by a family member or caregiver?

Mandated reporters are required (and any other persons are permitted) to file a report with Elder Protective Services if there is reason to believe that a person age 60 or older is at risk of serious physical, emotional, or sexual abuse or financial exploitation. Massachusetts General Laws, Chapter 19A. The abuse prevention hotline is run by the Executive Office of Elder Affairs (800-922-2275).

• Who is a mandated reporter?

Mandated reporters include physicians, physician assistants, medical interns, dentists, nurses, family counselors, EMTs, licensed psychologists, registered physical and occupational therapists, osteopaths, and podiatrists, among others.

• What if the patient is not being abused by anyone, but is at risk because she can’t care for herself?

Reportable conditions include self-neglect, i.e., “the failure, inability or resistance of an elderly person to provide for him one or more of the necessities essential for physical and emotional well-being without which the elderly person would be unable to safely remain in the community.”

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