Determining Mental Capacity for a MA Health Care Proxy

I understand your concern, Trolley, but you really have nothing to fear. The process is controlled by Massachusetts General Laws Chapter 201D, Section 6. I am going to spell out the highlights so you will see how you are protected.

1. Your Agent's authority to make decisions for you does not begin until your doctor determines that you "lack the capacity to make or to communicate health care decisions."

2. This determination must be in writing and must contain your doctor's opinion regarding the cause and nature of your incapacity as well as its extent and probable duration. This written determination must be entered into your permanent medical record.

3. Notice of your doctor's determination that you lack capacity to make health care decisions must be given orally and in writing: (a) to you, where there is any indication of your ability to comprehend such notice; and (b) to your Agent. This section is key to your concerns because as long as you are conscious and able to communicate, your wishes will prevail over those of any other party, including your Agent or doctor, even if they believe you are irrational. If such a disagreement develops, you retain control unless a court of law determines you need a guardian. In that event, it is not the proxy that takes away your control, but a court that has heard evidence presented by all interested parties.

4. Also, if you object to a health care decision made by your Agent pursuant to a health care proxy, your decision will prevail unless a court determines that you lack capacity to make health care decisions.

5. If your doctor later determines that you have regained capacity to make medical decisions, then your Agent's authority ceases, and you can start making your own decisions again.

So don't worry, Trolley, and make sure you have a Proxy in place.

For more information or to post a question, visit our MA Elder Law Discussion Forum.