As a patient, one of your most fundamental rights is to express your own health care preferences and make decisions about your medical treatment. In Massachusetts, every competent adult 18 or older has this right and can direct their own care. Still, many people worry about what will happen if they reach a point where they can no longer make those decisions themselves.
One of the most effective ways to plan for that possibility is to name a health care agent through a health care proxy, so someone you trust can step in if you become unable to decide for yourself. This matters in Massachusetts because the state has no law that automatically designates who may make medical decisions for an incapacitated adult. Without a health care proxy, your family may have to ask a court to appoint a guardian to authorize treatment, and that guardian may not be the person you would have chosen. If you have a loved one in this position, speaking with a Massachusetts health care proxy attorney at Cohen Cleary may help clarify the laws surrounding medical decision-making.
What Is a Healthcare Proxy in Massachusetts?
A healthcare proxy is a legal document that allows you to appoint a trusted person who will speak for you if an accident or illness renders you unable to do so. This role is also often referred to as a healthcare agent.
You can create this designation when you are of sound mind without the risk of losing your autonomy, as Massachusetts health care proxy law dictates it is only active when a physician determines, in writing, that you lack the capacity to make or communicate your medical choices. Your health care agent’s role is to step into your shoes and make healthcare decisions that align with your wants, goals, and values.
How Massachusetts Law Differs From Most Other States
Many people believe that their parents, spouse, or adult children have the inherent right to step in and fill the role of a healthcare proxy. In most states, this is true, and the law provides a hierarchy of family members able to make those decisions on your behalf.
Under MGL c. 201D, the state does not presume that your desire is for your family to handle your care. A spouse, parent, or adult child does not have the automatic legal right to make health care decisions for you in most circumstances, and this can leave you and your family caught off guard and unprepared.
Instead, in the event of incapacitation, a court-appointed guardian or validly designated healthcare proxy makes decisions for you. This may mean your loved ones must undergo stressful and sometimes expensive legal processes to step in and make decisions for you.
What Actually Happens When You Don’t Have a Healthcare Proxy
In an immediate, emergency situation, a healthcare facility and its medical providers will administer life-sustaining treatments to stabilize you. If there is no threat to your life or after the emergency situation passes, your family and care team may face some challenges determining ongoing care.
Under M.G.L. c. 201D, § 16, when no health care proxy exists, a provider is not barred from relying on the informed consent of “responsible parties” on behalf of an incapacitated patient, but only “to the extent permitted by law.” The statute never defines “responsible parties,” and on its own it does not grant anyone authority they would not otherwise have. Massachusetts courts have treated this as a savings clause that preserves existing authority rather than creating new authority, and the authority they recognize applies mainly in emergencies, when a patient lacks capacity and has no proxy in place.
In practice, this leaves a gap. Providers may consult family informally, but for non-emergency decisions, relatives often lack clear legal authority to consent without a proxy or a court-appointed guardian. That uncertainty can delay care and create disagreement among family members, which is one more reason a health care proxy is so valuable
Can a Living Will or MOLST Fill the Gap?
Many people assume that simply writing down treatment preferences is adequate. While a living will in Massachusetts may act as evidence of your wishes, it cannot designate a healthcare proxy. The state requires an individual to be designated as a healthcare proxy to speak for you.
A Medical Orders for Life-Sustaining Treatment (MOLST) is a medical order signed by a doctor stating what life-saving measures you do or do not want. This document is highly specific to life-threatening situations and may be helpful in guiding life-sustaining measures. It also does not address non-life-threatening decisions or designate a person who can make those decisions.
Relying on these measures can leave your family with additional stress and conflict during an already trying time.
When the Court Gets Involved: The Guardianship Process
When a loved one lacks a healthcare proxy, it can force family members to pursue action through your local Probate and Family Court to petition for guardianship. The process can quickly become costly and time-consuming, requiring them to gather evidence, follow court processes, and wait for court dates when time is of the essence. In addition, your private medical details will become part of the public court record.
If your family cannot agree on what is best, the court may appoint a neutral, professional third party to make medical and mental health decisions for you. This leaves your family out of control of your care, and makes it more difficult to ensure your care aligns with your wishes. Consulting with a healthcare proxy lawyer can help.
Who Is Most at Risk Without a Healthcare Proxy?
Every adult, no matter how healthy, should complete a healthcare proxy to avoid being in a situation where their family cannot help make decisions regarding their medical care. Certain individuals face higher risks, including:
- Young Adults: When a child turns 18, many people still assume that parents are the first to be called, but once someone becomes a legal adult, their parents lose automatic rights to view their medical records or dictate care. A healthcare proxy should be established to continue their care in an emergency;
- Unmarried Partners: If you have a long-term partner, it can be easy to forget that the law has different standards for establishing your relationship. Though the law may push providers to work with spouses, if you are unmarried, this may present additional challenges when it comes to your partner having the rights and access you would like for them to have if you have not established a healthcare proxy; and
- Individuals with Complex Medical Needs: If you have a degenerative, debilitating, or chronic illness, it is likely that you have considered what your care should look like in the future. These situations may make it especially important to ensure that you have the appropriate legal protections in place so your loved ones are not left scrambling as your condition worsens.
If you are an adult, especially one in these at-risk categories, you can protect your wishes and the overall experience of your loved ones by prioritizing a healthcare proxy.
Contact Cohen Cleary to Get Your Healthcare Proxy in Place
A healthcare proxy form is a relatively simple way to help take care of your family in a challenging time. It gives them clarity on what should happen, and it provides you the opportunity to express your wants and needs to the individual prior to an emergency. Contact the compassionate healthcare proxy attorneys at Cohen Cleary, P.C. today to set up a consultation.
