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What Happens if You Don’t Have a Massachusetts Health Care Proxy?

By Harry S. Margolis


As long as we are 18 or over and have our wits together, we all have the right to make our own health care decisions. But what happens when we become incapacitated, whether temporarily or permanently, and cannot make such decisions?

Then, legally, only a court-appointed guardian or an agent under a health care proxy can make decisions for us. In an emergency, medical providers can take measures to keep us alive, but once the emergency has passed, no one has the right to step in and make decisions in the absence of a health care proxy or guardianship appointment.

Massachusetts Health Care Proxies are an Anomaly

A spouse, parents, and children have no legal right to make health care decisions for you. This often comes as a surprise to families. No wonder; it turns out that Massachusetts is unusual in this regard. Most other states have a statutory list of relatives in order of priority to make decisions. Only three other states, Nebraska, New Jersey and Missouri, require either a duly-appointed health care agent or guardian.


(You can read more about how other states prioritize health care decision-makers here.)

Need for Guardianship

In the absence of a health care proxy, family members or the medical institution will have to go to court to have someone appointed as guardian and in extreme cases, get specific court authority for specific medical procedures. This process can be cumbersome, expensive, and time-consuming. In addition, it can become the venue for conflict if family members can’t agree on who should serve as guardian.

So, spare your family and appoint someone you trust to serve as health care agent. Fortunately, the Massachusetts Medical Society provides a free health care proxy form which you can download here.

But What Happens in the Real World?

There is a somewhat confusing provision of the health care proxy law (M.G.L. Ch. 201D) in Section 16 which reads as follows:

In those instances that a health care proxy has not been executed, nothing herein shall preclude a health care provider from relying upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law.

Other than guardians, I have no idea who “responsible parties” who act “on behalf of incompetent or incapacitated persons” may be. Parents are the natural guardians of their minor children and courts can appoint guardians over incompetent adults. I’m not aware of any other situation where the law gives others the power to make health care decisions absent a health care proxy.

That said, my guess is that in the absence of a health care agent or guardian, many health care providers do rely informally on family members to make decisions when they are all in agreement. That’s certainly much easier than forcing the appointment of a guardian for even the most straightforward medical decision. Perhaps such medical providers depend on this section of the statute for legal support. Or, perhaps, they simply take the road of least resistance without being too concerned about legal authority.

At Least One Hospital Follows Organ Donation Rules

To follow up on what happens in practice, I contacted the general counsel of one Boston-area hospital. Here’s her response:

It depends on the status of the patient. If the patient is unable to communicate their wishes or the patient lacks capacity but is generally in agreement with the plan [and there is no health care proxy] the consent can come from . . ., the patient’s “family”. Most hospitals use the list provided under the organ donor statute in their policy, given that Massachusetts law does not provide one.

The Massachusetts organ donor statute (M.G.L. Ch. 113A, Sec. 9) provides the following priority listing for who can authorize an organ donation after the death of someone who has not agreed to organ donation during his or her life:

(1) an agent of the decedent at the time of death who could have made an anatomical gift under clause (2) of section 4 [health care agent, guardian or parent of a minor] immediately before the decedent’s death;

(2) the spouse of the decedent;

(3) an adult child of the decedent;

(4) a parent of the decedent;

(5) an adult sibling of the decedent;

(6) an adult grandchild of the decedent;

(7) a grandparent of the decedent;

(8) an adult who exhibited special care and concern for the decedent;

(9) a person who was acting as a guardian of the person of the decedent at the time of death; and

(10) any other person having the authority to dispose of the decedent’s body.

My friend added:

If the patient has no one or is actively refusing and lacks capacity, we would typically try to get a guardian appointed. That process is costly and time-consuming so is a last resort.

So, the bottom line appears to be that, in the absence of a Massachusetts health care proxy, hospitals in the state will generally honor the wishes of the family, as long as they’re in agreement. In the absence of family members or when they are not in agreement, a guardian will have to be appointed.

Related Articles:

Can You Name More Than One Person on a Health Care Proxy?

How Can You Help Your Aging Parents from a Distance?

How Many Agents Should You Name on Your Durable Power of Attorney?

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