Current Health Care Proxies: More Important
Than Ever Before
A devastating accident, a long-term illness, a traumatic head injury or a stroke can leave you unable to make your own medical decisions. Who will make those decisions on your behalf? Will that person understand your wishes and be able to carry them out?
Under Massachusetts law (General Laws, Chapter 201D), if you are a competent adult, at least 18 years old, you are permitted to appoint a Health Care Agent, in advance, to make decisions concerning your health care in the event you are unable to do so yourself. This is accomplished by executing a Health Care Proxy (HCP). The HCP becomes effective only upon a determination by your attending physician that you are unable to make medical decisions on your own. In such a case, physicians will look for an alternate decision maker. Without a HCP, you will forfeit your ability to be heard. It would then be necessary to petition the Probate Court to have a guardian appointed to make your medical decisions. This can cause a severe impediment when medical decisions need to be made immediately.
Today, executing a HCP has become more important than ever before. Massachusetts has recently enacted the Massachusetts Uniform Probate Code. Beginning July 1, 2009, the courts will be increasing their oversight of the entire guardianship process. The new process demands heavy reporting requirements for guardians and continuous court involvement for all medical issues, including placement decisions for the elderly and for disabled persons of all ages. This legal process is public, lengthy and expensive. Worst of all, it can lead to your medical decisions being made by a committee of lawyers, doctors and judges. A HCP is the most effective way to avoid this process by selecting a trusted person to make these crucial, personal decisions.
Under the HCP, your appointed Agent is typically authorized to make a wide array of health care decisions on your behalf. It allows you to set forth your preferences regarding your medical treatment, including the use of medications, respirators and feeding tubes. It may also include a "living will" directive to express your wishes as to end of life care, including the use of artificial or "heroic" measures. Depending on your comfort level, it can be more or less specific on the decisions you would like your agent to make for you. You should be sure to choose an Agent who has the ability for rational thought during emotional and traumatic times, and who will insist on communicating your wishes, even in the midst of disagreement among relatives.
Most importantly, if you already have a HCP in place, be sure to keep it updated. More and more frequently, health care facilities and providers are becoming reluctant to honor a HCP that is too old. These older documents are often being considered "stale" when they were executed more than one year ago. The concern here is that, as time passes, family circumstances and relationships may have changed and that the person you have appointed to make your decisions may no longer be the person you want calling the shots. This problem emphasizes the need to update your HCP by signing a new one every year on its anniversary date.
For Parents with adult children, make sure that they execute a HCP naming you as their Agent for making health care decisions. This is easily overlooked by parents when completing their own estate plans. Often, parents mistakenly believe that still have authority to make these decisions, as their child's legal representative, even after the child's 18th birthday. Though there are simple forms available from local hospitals, your attorney can provide a more comprehensive HCP, along with the advice needed to make sure you, and your adult children, are well protected, and that your wishes will be honored. So for your adult child's next birthday, keep them smiling by giving them the latest in high-tech gadgets, but keep them protected by giving them a Health Care Proxy.
William M. Sheridan, Jr. is an Associate with the law firm of Doherty, Ciechanowski, Dugan & Cannon, P.C. He practices in the areas of Estate and Asset Protection Planning, Elder law and Probate Administration. William may be reached at (508) 359-5114 or via email at wms@dcdclaw.com.
DISCLAIMER: The information presented here is provided with the understanding that it does not constitute legal advice in any manner. It is provided for informational purposes only and should not serve as a substitute for consulting with a qualified attorney.