Those interested in executing a Health Care Proxy should first understand how that document differs from a Living Will.
A Health Care Proxy names and authorizes your Healthcare Agent, the person who will make medical decisions for you should you become incapacitated; and
A Living Will explains your wishes regarding medical care.
In Massachusetts, you may choose to include a general philosophy regarding medical care in your Health Care Proxy and not use a Living Will (as we have done in the sample Proxy, below). Some people may prefer to use both documents, especially if they have specific and detailed wishes regarding end of life care. For more information about Living Wills, click on "Information About Elder Law" on our Quick-Reference Library page.
Ideally, you should seek the assistance of your estate planning attorney when you are ready to execute your Health Care Proxy and Living Will. If you choose to use forms you find on the Internet or in a book, you should follow these guidelines to make your documents as effective as possible:
1. Executing a Living Will is not enough. Although Living Wills are useful documents, they are not statutorily recognized in Massachusetts, and doctors and hospitals are not required to adhere to the wishes expressed in your Living Will. You need to execute a Health Care Proxy that names an Agent who will enforce your wishes.
2. In addition to identifying the Principal (you) and your Agent, your Proxy must state that you intend to grant to your Agent the authority to make health care decisions on your behalf; describe any limitations you wish to place on your Agent; and indicate that your Agent's authority becomes effective only if you subsequently lose capacity to make medical decisions. (Also, it is wise to include the addresses and telephone numbers of your Agent and Alternate, so they can be located quickly).
3. Your Proxy must be signed by you or at your direction in the presence of two adult witnesses. The witnesses must then sign and affirm that you appear to be at least eighteen, of sound mind, and under no constraint or undue influence. (It's a good idea to follow these rules if you execute a separate Living Will.)
4. The witnesses cannot be named as an Agent or Alternate Agent. And an operator, administrator, or employee of a medical facility where you are, or may be, a resident or patient cannot be your Agent, unless she is also related to you by blood, marriage, or adoption.
5. Do not hide your Proxy and Living Will in a safe. Execute five or six originals, one for your primary care physician (with oral and written instructions to place the documents in your medical records), one for your medical records at the hospital you are likely to end up at in an emergency, one for your Agent and one for your Alternate, one for your own records, and a copy for your lawyer's safe.
6. If you spend a lot of time in another state (winters in Florida, for example) you should consult an attorney in the second state to ensure that your Proxy will also be recognized there.
7. If your Agent is your spouse, and you divorce or are legally separated, your entire Health Care Proxy is revoked. In other words, your Alternate Agent cannot step in and take the place of your spouse. In this case—or if you revoke your Proxy orally or by drafting a substitute—you should collect your old documents, destroy them, and distribute your new Proxy.
8. Select your Agent and Alternate carefully. Make sure they understand your wishes and are willing to do all they can to ensure they are honored. Communication is vital.
9. Express your wishes as clearly as possible in your Proxy and Living Will. Clarity and brevity will help your Agent, family, and doctor understand your wishes.
10. Communicate, communicate, and communicate.
a. Talk to your family about the wishes you have expressed in your Proxy and Living Will and tell them who you have selected as your Agent and Alternate. Surprise, hard feelings, or controversy around your hospital bed may create an unpleasant situation and could result in your wishes not being honored.
b. Talk to your doctor about your Proxy and Living Will. Make sure she, and the facility at which she enjoys staff privileges, are willing to honor your wishes.
For more detailed information about all aspects of end of life planning, see our "Books About MA Law" page.
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Peter E. Bernardin is an attorney and a certified public accountant. He is a member and former chairman of the Massachusetts Bar Association Probate Council and a member of the National Academy of Elder Law Attorneys. Peter has an elder law and estate planning practice with the Plunkett Law Firm in Salem, Massachusetts.
Peter E. Bernardin
The Plunkett Law Firm, P.C.
194 Essex Street
Salem, MA 01970
978-744-9944
Peter@theplunkettlaw.com |
Health Care Proxy Example
I, John Doe, residing in Andover, Massachusetts, hereby create a health care proxy under Chapter 20lD of the General Laws of Massachusetts ("Chapter 20lD"). I hereby revoke all health care proxies previously executed under Chapter 20lD.
Appointment of Health Care Agent. I hereby appoint as my health care agent (such agent, together with the alternate agent(s) appointed below, being referred to as my "Health Care Agent"):
NAME: Jane Doe
ADDRESS: 28 Main Street, Andover, MA.
TELEPHONE: 978-xxx-xxxx
Appointment of Alternate Agent. I appoint the following alternate to be my Health Care Agent during any time that my Health Care Agent named above is not available, willing or competent to serve, and is not expected to become so to make a timely decision given my medical circumstances, or is disqualified from acting on my behalf pursuant to Chapter 201D:
NAME: Tim Doe
ADDRESS: 28 Main Street, Andover, MA.
TELEPHONE: 978-xxx-xxxx
Authority. My Health Care Agent shall have full authority to make all health care decisions for me which I could make for myself if I had the capacity to make or communicate decisions, including, but not limited to, decisions about life-sustaining treatment, subject only to the limitations (if any) set forth by me below. My Health Care Agent shall make health care decisions for me only after consultation with my health care providers and after full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatment and their side effects, and only in accordance with my Health Care Agent's assessment of my wishes, including, but not limited to, my Philosophy Regarding Heath Care (below). My Health Care Agent's authority shall become effective upon a determination pursuant to Chapter 20lD that I lack capacity to make or communicate health care decisions.
HIPPA Authority. Upon my attending physician making such determination, my agent shall immediately become my personal representative for all purpose of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and be authorized, as such, to receive my medical information.
Specific Limitations on Authority: None.
My Philosophy Regarding Health Care. I believe that dying is a natural part of life, not something to be avoided at any cost. If I develop an injury, disease, or illness regarded by my physician as incurable and terminal, or if said injury or illness leaves me unconscious or in a permanent vegetative state with no reasonable likelihood that I will recover or regain consciousness, and if my physician determines that the application of life sustaining procedures (including artificial hydration and nutrition) would serve only to prolong artificially the dying process, I request that such procedures be withheld or withdrawn and that I be permitted to die. I want treatment limited to those measures that will provide me with maximum comfort and freedom from pain.
IN WITNESS WHEREOF, I hereby declare that I have signed this instrument under seal in the presence of the witnesses named below, as my free and voluntary act for the purposes herein expressed, this ______ day of _______ 2006.
______________________________
John Doe
We, the undersigned witnesses, each do hereby declare in the presence of the aforesaid Principal that the Principal signed and executed this instrument willingly in the presence of both of us, that each of us hereby signs this instrument as witness in the presence of the Principal and of each other, that the Principal, appears to be at least eighteen years of age, of sound mind, and under no constraint or undue influence, and that neither of us is a named Health Care Agent or Alternate hereunder.
______________________________
Witness:
Address:
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Witness:
Address:
