A Guide for Elders: Planning That Protects You and Your Assets, Chapter 3
WHY DO I NEED A HEALTH CARE PROXY DOCUMENT?
WHAT IS A HEALTH CARE PROXY DOCUMENT?
A health care proxy document is written instruction by a person, referred to as the Principal, who appoints a health care Agent, or Proxy Agent, to make medical or health decisions when the Principal is incapacitated and unable to make or communicate such decisions. Under a durable power of attorney, your Agent is authorized to make business and financial decisions for you in accordance with your wishes. This person cannot, however, make decisions about your health or health care. You must make a separate authorization in a health care proxy document. Your health care Agent could be the same person you have named as your Agent in your durable power of attorney document, or, you could name a different person, based on different factors that do not involve financial matters.
Every person has the right to accept or decline medical care, and, so long as you are able to communicate to a medical authority your wishes, those wishes must be honored. If you are unable to communicate your wishes, your Agent, given authority by you in a health care proxy document, will be able to make medical decisions for you, for as long as you are unable to do so. You must be unable to communicate your wishes before the Agent’s authority becomes effective. If you regain the ability to communicate your wishes, the authority of the Proxy Agent ceases.
WHO SHOULD I SELECT TO SERVE AS MY HEALTH CARE PROXY AGENT?
You should select a person whom you trust to follow your wishes as to what medical care you want and what medical care you do not want. You should select a trusted person who will not make medical care decisions based on his or her wishes or values, but rather one who will carry out your wishes to the letter.
HOW DO I CREATE A HEALTH CARE PROXY DOCUMENT?
A health care proxy document must be in writing and must be witnessed by two people, who are 18 years of age or older. If you are in a hospital or a nursing home, a staff member may serve as a witness, but not as your Agent. You may give specific instructions to your Agent or you may give full authority to make all medical decisions, so long as those decisions are in accord with your wishes.
You will find formats following this chapter for health care proxy documents that you should review. One format was developed by Massachusetts Health Decisions, a local, nonprofit organization. That format contains a do-it-yourself set of instructions. 1 The second format contains a more extensive section by which you are able to limit your Agent’s authority by specifically instructing the Agent not to authorize certain medical procedures, or to discontinue such procedures if they have been already initiated. You can decide which one is best for you, and you do not need a lawyer to complete a health care proxy.Once you have signed a health care proxy document, you should give or send a copy to every doctor who treats you, a copy to your Proxy Agent, and a copy to your medical files wherever they are kept. You should consider giving a copy to all immediate family members, or any person whom medical authorities would confer with if you were involved in a medical emergency.
WHAT IF I DO NOT HAVE A HEALTH CARE PROXY?
In Chapter 2, there is a scenario involving Mrs. Adams, who is incapacitated as a result of an automobile accident, and unable to communicate with her doctors. Because she did not execute a health care proxy ahead of time, it may be necessary for her family members to file a petition with the Probate Court in order to have a legal guardian appointed to make medical decisions for her. (See Chapter 7 for a discussion of guardianships.)
If Mrs. Adams had had a health care proxy document in place, the medical authorities would have taken instructions from the Proxy Agent, just as if those instructions were coming from the patient herself. The hospital authorities would do so because the law protects the hospital and the Proxy Agent so long as they are acting in good faith. They cannot be successfully “second guessed” by any other person who is unhappy with any medical decisions made.
MUST A DOCTOR HONOR MY HEALTH CARE PROXY DOCUMENT?
It is a fundamental right which we all enjoy that you alone have the right to accept or to refuse medical treatment. Every doctor must honor that right, and obtain your consent before providing care or treatment. In the unusual situation where a doctor has some ethical or religious objection to your instructions whether contained in your health care proxy document or given verbally by your Agent, that doctor must, under the law, refer your case to another doctor who will honor your or your Agent’s requests.
WHEN DOES MY AGENT HAVE AUTHORITY TO ACT FOR ME?
Your Agent’s authority to act for you begins only after your attending physician states in writing that you no longer have the capacity to make or communicate your own health care decisions. Further, your Agent’s authority remains in effect only for as long as you cannot make your own decisions. As long as you are able to make and communicate your health care decisions, you have full authority to do so — even if you have completed a health care proxy document.
HOW CAN I FIND OUT MORE ABOUT HEALTH CARE PROXIES? You can learn about health care proxy documents by consulting Chapter 201D of the Massachusetts General Laws. If you need more help, please see the last paragraph of Chapter 2 for referrals.
1 Health care proxy forms may be available at your local hospital, health maintenance organization (HMO), or other health care agency or facility; or from your doctor, lawyer, clergyperson, or financial planner. A complete information packet on the health care proxy, including two forms (samples of which are found at the end of this chapter) and a 16-page User’s Guide, is available for $6 from: Massachusetts Health Decisions, P.O. Box 417, Sharon, MA 02067. Back to text
Chapter 3 Exhibits (sample Health Care Proxy forms)
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