Get Your Health Care Proxy Right: It May Be A Matter Of Life And Death

A2277848How much pain, nausea, and torment are you willing to tolerate?  What if all that agony would only prolong your life by a few days or weeks?  What if you knew that the pain and/or nausea would be unending?  If you were incapable of making or communicating your decisions, who would make the decisions for you?  No one, not your husband or wife, not your children, has the automatic legal right to do that.  In 1990, the Commonwealth enacted the Health Care Proxy (HCP) law.  Regrettably, many people still do not know quite how it works.  By getting it right, you may be able to keep control of your health care decisions, even if you can’t communicate them.  Here is what you need to know:

  • By signing an HCP, you can appoint someone (called your “agent”) to “step into your shoes” to make heath care decisions for you. Your signature must be witnessed by two disinterested people who swear that you were over 18 and of sound mind at the time you signed the HCP.
  • If you give your HCP, or a copy of it, to your doctor, he/she is required to add it to your medical record. That is the best place for it, since EMTs and others will contact your doctor in the event of an emergency. If you bring it with you to the hospital, the hospital is not required to keep it.
  • Every time you sign a new HCP, it revokes any previous HCP that you may have signed. So if you already have an HCP when you go to the hospital and you’re asked to sign their “standard” HCP, DON’T! It will have the effect of revoking your old one. Instead, tell hospital staff to have your doctor fax or email them a copy. A hospital or other medical facility cannot refuse to treat you because of your refusal to sign their form.
  • In your HCP, you can name an alternate agent in case the first person you had named to act for you is unable or unwilling to do so. It is always a good idea to name an alternate, since it may be that your agent is on vacation or otherwise unavailable.
  • Your HCP only takes effect when your “attending” physician decides in writing that you do not have the capacity to make or communicate a medical decision. The HCP becomes inactive as soon as your attending physician decides in writing that your capacity has returned.
  • If you are competent, you can ALWAYS refuse a medical treatment or revoke your HCP after you have signed it. If you do so, then your doctor and/or the hospital have to do what you say unless a Probate Court decides otherwise. So if you do not like what is happening to you at the hospital, tell them to stop. It is your right.
  • If you have particular wishes about how to be treated, especially whether your want certain so-called “life sustaining” treatments like intubation and mechanical breathing machines, you should discuss those with your doctor and the people you name in your HCP. While these are not exactly fun conversations to have, they could have a major impact on how you live for weeks, months, or years, and on whether your treatment is designed to promote your life or allow your death.

Through your Health Care Proxy, you can make sure that your wishes are known regarding your treatment, especially at those times when you are most weak and vulnerable and unable to communicate your own wishes.

In the next post, I will be talking about THE FIVE WISHES document, and why using this form may or may not be a bad idea.Duck

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.
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