If you suffer a serious injury or illness, who will care for you? You may think that your family and friends understand your wishes about life support, feeding tubes, and other major procedures, but they may actually be unclear about what you would want. Further, even if they do understand your wishes, your treating doctors may not legally be allowed to follow their instructions. Setting up a health care proxy can eliminate these concerns.
WHAT IS A HEALTH CARE PROXY?
A health care proxy is a legal document giving someone else the authority to make medical decisions on your behalf when you are unable to do so. It allows a doctor to follow the instructions of a third party even if the law would not otherwise allow it. For example, spouses or next of kin can generally make health care decisions without a health care proxy, but a more distant relative, close friend, or unmarried partner wouldn’t be able to. In legal terms, the person named in your health care proxy becomes the medical agent for you, the principal.
Unless you are happily married and want your spouse and only your spouse to have the authority to make any necessary medical decisions on your behalf, you probably need a medical proxy. Even if you are young and healthy, a health care proxy can cover what should happen if you are incapacitated in a car accident, suffer a workplace injury, or suddenly take ill. Health care proxies are also useful to the elderly or those suffering long-term illnesses who may be losing mental capacity. You may also want to consider a health care proxy before surgery or some other medical procedure requiring anesthesia in case all doesn’t go according to plan and an emergency decision has to be made in the middle of the operation.
WHEN DOES THE AGENT HAVE THE POWER TO BEGIN MAKING MEDICAL CHOICES FOR THE PRINCIPAL?
A health care proxy takes immediate effect, but the agent’s actual power to begin making medical choices is usually conditioned on the principal being incapacitated. This could be due to unconsciousness, a coma, or other possibly temporary condition. It could also be when a person loses the ability to make rational decisions on their own behalf through dementia or some other disease. In cases where the principal is conscious but has diminished mental ability, the principal’s physician will make the final decision regarding their mental capacity to make their own decisions.
CAN YOU CHANGE YOUR MASSACHUSETTS HEALTH CARE PROXY?
Yes. A health care proxy is not binding and can be changed or revoked at anytime assuming that you are conscious and able to do so. If there is a question of your mental capacity at the time you attempt to change or revoke your health care proxy, your doctor will decide whether you are fit to do so by balancing your stated wishes with any immediate negative impact on your health care. For example, your doctor may question your capacity to make changes if you try to do so in the middle of a medical procedure but will probably honor the request if there is time for your family and/or former agent to be consulted and raise any objections.
The simplest way to change a health care proxy is to replace it with a new one. The newest-dated valid health care proxy will always invalidate all previous versions. If you simply wish to revoke a health care proxy, the only requirement is that you make your wishes clear. The best way to do so is to notify your health care providers in writing. If you are married and your spouse was named in a health care proxy, that proxy will automatically become invalid if you separate, but it can still be a good idea to revoke it in writing to make sure that your health care providers are informed of your change in marital status.
Contact Elder Law Attorney Tobin to discuss how your personal health care wishes will be followed with a legally binding health care proxy.