Welcome to the final article in the series covering Uniform Probate Code
B. Health Care Proxy/Living Will
A
health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy." M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia.
Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. The proxy will permit the agent to order the withdrawal of such life support. A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. Alternates should be named in the event the first person appointed cannot serve for any reason. To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. M.G.L. c.201D §3.
It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. More capacity is required to give medical directives than is required simply to delegate decision-making authority. These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. If the principal's family ever has to make these difficult decisions, their burden will be eased by the expression of a principal's wishes provided by a directive.
According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. Unlike a typical
power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent.
In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records.
The role of the health care proxy continues to be clarified. Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. This rules applies even if the patient was accepting the medication.
More recently, the Massachusetts Supreme Judicial Court held that the Massachusetts health care proxy statute allows an agent to commit a principal to a mental health facility providing the principal does not object. (Cohen v. Bolduc, SJC 08554, 1/11/02)
This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. In that event, the agent would have to obtain court authority.
In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy.
In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. In addition, a guardian cannot revoke a health care proxy without obtaining court authority.
Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions.
Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a person to make medical decisions on their behalf. A
living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. The health care proxy is the more important of the two documents. Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. If the client lists one hundred situations, the agent may face a situation that is not listed. In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. The healthcare proxy can be drafted to include “medical directive” language. A medical directive describes in broad general language what the clients wishes are regarding treatment. Because the directive is general rather than specific, the health care agent can apply it to any situation they face.
This series has been brought to you by Boston Attorneys
Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
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