Health Care Proxies in Massachusetts: Have the document, then have the conversation

Conn Kavanaugh

In Massachusetts, communicating and enforcing our health care wishes is a two step process. First, we must have the document. Under our state laws, a health care proxy must be in writing, be executed properly, and must name a single health care agent. You may name successor health care agents, but only one may serve at a time.

A Massachusetts health care proxy becomes effective when a doctor determines that you are no longer competent or can no longer communicate your wishes. At that point, your health care agent can make any decision that you could have made when you were competent. While many people have a written living will, indicating their wishes for end of life and emergency medical care, it is important to remember that, in Massachusetts, this document is not legally enforceable – instead, it is only an expression of your intentions. This means that the decision that your health care agent makes will control your medical care.

Once your health care proxy has been executed, it is important to move on to the second step - have the conversation. In preparing to talk with family members about your end of life and emergency health care wishes, spend some time considering just what your wishes are, as my colleague, Sheila Giglio, discussed in her last blog post. My clients have found the following sites to be helpful resources during this process:

Couples should spend some time making sure that they understand each other's wishes. Each of us should gather those likely to be most impacted by our future illness - significant others, adult children, parents, siblings, other successor health care agents - for an honest conversation. While the conversation can be in person, by Skype or FaceTime, or on a conference call, it is helpful to share with everyone at once. This gives those we love important information about what we would and would not want, and because these wishes are shared with a group of people, the health care agent should have more support in making challenging decisions.

Ideally, each of us will revisit this conversation with our families regularly - many families plan to discuss it annually, when they are together during the holiday season.

Do you have a current Massachusetts Health Care Proxy? Are your agents named to serve one at a time?

Have you had the conversation with your family? What resources helped you in that process?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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