The Importance of a Health Care Proxy

Estate planning involves more than just providing for the distribution of your assets at death.

In addition to your Will, effective planning requires that during your lifetime you designate someone to act on your behalf if you become incapacitated.  You can do this through a Power of Attorney and a Health Care Proxy. These documents allow your agent to make financial and health care decisions for you, without having to seek a guardianship or conservatorship through the probate courts.

The following information is designed to add to your understanding of how a Health Care Proxy will help you and your family. 

A. Introduction: A Health Care Proxy transfers authority over all decisions regarding health care from you to your designated Agent but only when you are incapable of making or communicating your wishes concerning such matters.  It is a “standby” document designed to avoid conflicts regarding difficult decisions during medical crises.  Persons signing such documents should be aware of the following:

Massachusetts does not recognize “living wills.”  In some states, “living wills” are used to pre-determine medical care, for example by stating one’s preferences regarding use or non-use of artificial respiration, tube feeding, invasive surgery, etc.  Massachusetts does not recognize “living wills.”  Proxies merely appoint someone to make difficult medical decisions when necessary. 

1. Proxies do not become effective until you are deemed “incapable” by a physician.  The law allows you to contest such a determination in court.
2. Proxies can be revoked. 
3. Proxies are generally valid in other states.
4. HIPAA authorization included in the Proxy grants your agent access to your medical records.  Without such authorization, a doctor or hospital may deny a duly appointed Agent access to the records necessary to make appropriate medical decisions.

B. What you should tell your Health Care Agent.  Unlike a “Living Will” you probably will not provide highly specific direction in your Health Care Proxy. You should, however, communicate your wishes to the individuals you designate as your health care agent and successor agent.

We recommend that you choose individuals who understand your wishes regarding medical treatment and end-of-life decisions.  These individuals should also understand that they will exercise their best judgment based on your personal values.

This article is offered for informational purposes only and should not be construed as legal advice.    Before executing any documents, you should seek advice from a qualified attorney.  Changes in the law and your personal circumstances may significantly alter the strategies recommended.