My father is in a nursing home. He has an activated health care proxy, but recently decided to change it so he could make me his health care agent. He then signed a new proxy form consistent with MGL Ch. 201D.
The Nursing Home is now questioning whether my father is legally competent to change his proxy. As evidence, they cite my father’s original proxy activation. Under MGL Ch. 201D, Sec. 6 a physician had to document that my father lacked capacity to make health care decisions. Based on that, the Nursing Home now questions if my father is competent to make legal decisions, including a new health proxy. I was told: “Once a health proxy is activated, the Principal can’t revoke it or replace it.”
I’m pretty sure that is incorrect.
MGL Ch. 201D, Sec. 2 seems very clear about who is competent to execute a health proxy:
“... Every competent adult shall have the right to appoint a health care agent by executing a health care proxy. … For the purposes of this section, every adult shall be presumed to be competent and every health care proxy shall be presumed to be properly executed unless a court determines otherwise.”
MGL Ch. 201D, Sec. 7 covers proxy revocation: “... A principal may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy. For the purposes of this section, every principal shall be presumed to have the capacity to revoke a health care proxy unless determined otherwise pursuant to court order.”
MGL Ch. 201D, Sec. 6 addresses the issue of physician-documented incapacity: “... A determination made pursuant to this section that a principal lacks capacity to make health care decisions is solely for the purpose of empowering an agent to make health care decisions pursuant to a health care proxy.” (In other words, the physician note required to activate a health proxy cannot be used for any other purpose.)
Based on the above, I think my father is entitled to sign a new heath proxy, and the Nursing Home must assume he is competent to do so unless they obtain a court order that states otherwise.
Is my understanding correct, or is the Nursing Home right about this issue?