Silveri & Wilson, LLC | Massachusetts Health Care Proxy Lawyer, MA, Wellesley, Needham, Newton, Weston, Boston,

About the Massachusetts Health Care Proxy

Under a Massachusetts Heath Care Proxy, the "principal" can appoint another adult as the "health care agent" to make medical and health care decisions when these decisions cannot be communicated due to the principal's incapacity. A health care agent is authorized to make all decisions involving the health care of the principal, that the principal would otherwise make, if he or she were able to do so (unless the proxy itself limits this power). Because the initial health care agent may not be able to serve (for example, has died, or is incompetent), at least one back up should be named. The Health Care Proxy Statute in M.G.L. ch. 201D.

At Silveri & Wilson, we take our estate planning representation, knowledge and expertise to another level above our competition and can assist you with drafting a Health Care Proxy as part of your overall estate plan.

Healthcare Proxy Requirements

To be valid, the Massachusetts Heath Care Proxy must be (1) in writing, (2) signed by the principal, and (3) signed by two witnesses who must attest that the principal is at least eighteen years of age, of sound mind and under no constraint or undue influence. The health care agent may not be one of the witnesses. Worth noting is that, no one associated with a nursing home or hospital where the principal is a resident or a patient may be the agent unless related to the principal by blood, adoption or marriage.

Additionally, a Massachusetts Heath Care Proxy must meet the following four requirements:

The document must name the principal and the agent;
The proxy must state the principal's intent that the agent shall have the authority to make health care decisions on behalf of the principal;
The principal must state what limitations, if any, the principal imposes on the agent's authority; and
The document must state that the agent's authority commences only if it is determined, that the principal lacks the capacity to make his or her own health care decisions.

Health Care Agent Decisions

One of the most challenging aspects of executing a Massachusetts Heath Care Proxy is to accurately determine how the principal would direct his or her health care if he or she were competent to make or communicate such decisions. If the principal has not provided any specific guidelines within the four corners of the proxy, the statute sets forth the following standard: "The agent shall first consult with health care providers and shall consider fully all acceptable medical alternatives regarding the principal's diagnosis, prognosis, treatments and side effects; then, the agent shall make a health care decision in accordance with his or her assessment of the principal's wishes, if known, including the principal's religious and moral beliefs, or if the principal's wishes are unknown, in accordance with his or her assessment of the principal's best interests."

Revoking a Health Care Proxy

A principal can revoke the health care proxy at any time by giving notice orally or in writing to the agent or to one of his or her health care providers. Making a new Heath Care Proxy under Massachusetts law automatically revokes a prior one. Also, if the agent is the spouse of the principal, divorce or legal separation terminates the spouse's authority to act as agent.

Liability for the Health Care Agent

Any agent acting in "good faith" will not be subject to criminal or civil liability for making health care decisions in accordance with the proxy. Any health care provider (or employee of such a provider) carrying out in good faith an agent's directive will neither be subject to criminal or civil liability nor be deemed to have acted unprofessionally.