Estate Planning



May 22, 2019

By Atty. Anne R. Tessier

If you get sick or injured, who will make decisions about your care when you cannot? Will your doctor look to your family for guidance? Is there anything you can do to be sure your wishes are honored? By signing a Massachusetts Health Care Proxy now you can ensure that the care and treatment you receive reflects your wishes.

Can my family make decisions about my care if I become ill or cannot speak for myself? The law in Massachusetts allows informed responsible parties to consent to medical treatment when you are incapacitated or unable to communicate your wishes. Your spouse, parents, siblings, and significant other, have the right to make decisions on your behalf when you cannot.

What happens when my family members disagree on what treatment is best for me? When your family members disagree on what treatment is best for you, your family and doctors would have bring a proceeding in court to decide.

Is there something I can do to make sure my wishes for medical treatment are followed, even when my family cannot agree on what that is? To ensure that the care you receive follows your wishes and beliefs when you are unable to decide for yourself, you can choose to name someone you trust to make those decisions for you by signing a Health Care Proxy. A parent, brother or sister, or a close friend may be named as your Agent. You may even choose a doctor, nurse or other health care provider, as long as they are related to you by blood or marriage.

Can my Health Care Agent override my decisions after I am incapacitated? Your Agent cannot override your decisions. You have the right to revoke your Health Care Proxy at any time, even if your doctor has determined that you are incapacitated.

Must your health care agent honor your wishes and beliefs? Your Agent has the authority to make decisions about your health care on your behalf, and must make those decisions in accordance with your wishes and in your best interest. Before making any decisions, your agent must consult with your doctor or other health care providers and fully consider different treatment alternatives as well as any side effects associated with treatment. The basis of their decisions must be in accordance with your wishes, including your religious and moral beliefs.

How can I be sure my agent knows what my wishes are? The most important thing you can do is to talk with your family, doctors and your Agent to discuss how you feel about your health care. You can also prepare a Medical Directive, more commonly known as a Living Will, that details your wishes for medical treatment. In Massachusetts although a Medical Directive is not legally binding it is a very good way to provide guidance to your agent, loved ones, family and doctors about your wishes.

What happens if my Health Care Agent does not know what my wishes are? If your wishes are known, then decisions concerning your care must be made in accordance with your agent’s assessment of your wishes and best interest, including your religious and moral beliefs. If your agent does not know or cannot reasonably infer what kind of treatment you would want, they must make their decisions based on care that is in your best interest. Your health care agent has the right to access medical information necessary to make informed decisions.

How does my Health Care Agent determine what is in my best interest? To determine what kind of treatment is in your best interest your Health Care Agent should consider how treatment can be of benefit, any impairment that may be caused from intervention, if any pain and suffering is associated with treatment, and quality of life.

What happens if a friend or family member disagrees with my Health Care Agent? When you name someone to act as your Agent by signing a Health Care Proxy, that person has priority to make health care choices for you above all others, including a guardian. However, you retain authority to make your own health care decisions, even after you have appointed an Agent. The only way for someone, other than yourself, to remove your Agent or override their decision is to bring a proceeding in court.

When does my Health Care Proxy become effective? The health care proxy is activated when your doctor determines in writing that you do not have the capacity to make or communicate decisions for yourself. You may revoke the Health Care Proxy at any time, even if your doctor has determined that you are incapacitated.

How do I choose my Health Care Agent? Choosing someone to make decisions for you can be difficult. You should choose someone that you trust to follow your wishes. Your Health Care Agent should also be someone that will be available. Although you may be very close with your sister, for example, if she lives out of state she may not be available to act on your behalf when you need her.

Can I name more than one person to act as my Health Care Agent? You may choose to name more than one person as your Health Care Agent. However, if you name two or more people to make decisions together, if they disagree on treatment they would have to bring a court proceeding to settle the matter. Many health care providers will not honor a Health Care Proxy that names two or more Agents acting together for that reason.

Can I name someone to act as an alternate Health Care Agent, in the event that my Agent is unable to act? You may name one person as your Agent and also name a second person as an Alternate Agent. That way if your Agent is unwilling or unable to act, the Alternate Agent may act for you.

Does my health care agent have access to my medical information? Your Health Care Agent has the right to access any and all medical information necessary to make an informed decision on your behalf. It is also a good idea to sign a medical information waiver to ensure that your Agent has access to all your health care information.

Conclusion. The law in Massachusetts permits doctors to obtain consent from your spouse, parents, siblings, or significant other to make decisions on your behalf when you cannot. To be sure those decisions reflect your wishes and values, it is a good idea to name someone you trust as your Health Care Agent and to talk with your doctors and those you are close to about what is important to you.

For information see Estate Planning and Plan for the Unexpected

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