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?
Capacity to make healthcare proxy
This is a complicated issue, but I agree with you. You can read this post regarding the invocation of a healthcare proxy. As you will see, under Massachusetts law, if your father disagrees with the doctor's assessment regarding his ability to make medical decisions, or if he disagrees with a decision made by his agent, his opinion is controlling until a court steps in and grants a guardianship to some other party. Also, the law contemplates the possibility that, after the healthcare proxy is invoked, the primary care physician may determine that the patient has regained capacity to make medical decisions and deactivate the proxy.
Also, the standard used by a doctor for invoking a healthcare proxy is not the same as that used by an attorney in determining whether a client has the capacity to sign a legal document and is not relevant in that regard (as you point out with your reference to MGL Chapter 201D, Section 6). In this post regarding mental or testamentary capacity, another complication is discussed: A person need only have legal capacity to sign a document AT THE TIME he signs his signature. In other words, an attorney could visit your dad on a Tuesday morning and find him alert and capable of signing a new healthcare proxy even though on Monday morning your dad was unable to execute because he was having a bad morning. Hope that was helpful and not too confusing.