One Limitation of a Health Care Proxy

A2277848Last week, my long-time client, Frank, met with me.  He was distraught because his wife, Mary, who suffers signs of increasing dementia and who had been agitated and not sleeping well for months, has now become aggressive too.  She is yelling and throwing things.  He is unable to deal with the situation anymore.  Mary needs to be in a nursing home or other secure setting for her own safety.  Although this would be in her best interest, Mary does not want to go.  Frank is named as Mary’s agent in her Health Care Proxy, and he has confirmed that her doctor is willing to declare that Mary no longer has the capacity to make medical decisions.  Frank wanted to know if he, as Mary’s agent, could have Mary admitted to a nursing home against her will.  Much to his surprise, I told him he could not. Why?

The Massachusetts Health Care Proxy Law, General Laws Chapter 201D (https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter201D) was created to allow people to decide ahead of time who could make medical decisions for them if they were unable to do so.  However, the legislature also wanted to make sure that the Health Care Proxy law was not abused and that people’s rights to make their own health care decisions were preserved.  If Mary starts yelling and screaming when Frank tries to get her admitted to a nursing home, he will have a problem.  The Massachusetts Health Care Proxy law states that, notwithstanding a determination that Mary lacks capacity to make health care decisions, if Mary objects to a health care decision made by Frank as her agent pursuant to a health care proxy, Mary’s decisions will prevail unless a Court determines that she lacks capacity to make health care decisions.

Also, in a 2002 Supreme Judicial Court case, Cohen v. Bolduc, 760 N.E. 2nd 714, the Massachusetts Supreme Judicial Court made it clear that there would need to be a Court order determining that the person who was refusing to be admitted was not competent to make her own health care decisions. Duck

Advertisements

About Arthur Bergeron

Art has been practicing law in Massachusetts for over 30 years. He focuses his practice on elder law, estate planning, probate and trust administration, and land use matters. Art counsels senior citizens and their loved ones regarding elder law and special needs planning, asset protection and Medicaid planning. He works with individuals in all areas of estate planning, including wills, trusts, durable powers of attorney, health care proxies and living wills.
Gallery | This entry was posted in Elder Law, Estate Planning and tagged , , , . Bookmark the permalink.