As part of a complete estate plan, most Massachusetts estate law attorneys will provide forms such as a “Durable Power of Attorney” and a “Healthcare Proxy.” These forms dovetail well with a last will and testament because they are documents that aim to carry out your wishes in the event you are unable to do so. In fact, in some cases they can be more important than an actual will in terms of what you deem to be important. This article outlines why everyone should have a health care proxy in Massachusetts.
Your Spouse Has No Authority Over Your Medical Care
Many couples assume that if something should happen to one of them, the other automatically has the authority to direct an attending doctor on treatment or even merely to obtain access to medical records. This is untrue. Most doctors will certainly take a spouse’s input under consideration when weighing treatment options, but they are under no obligation to follow that input. Moreover, a doctor is bound by HIPAA standards that severely restrict the sharing of information on a patient’s condition or any other medical information. In Massachusetts, a doctor is only required to share information with and receive direction from the spouse if he sees a signed health care proxy. The same is true regarding children over the age of 18.
Doctors Can be Overly Careful Fearing Malpractice Suits
Many doctors are very careful to act conservatively when faced with potentially risky consequences. Imagine, for example, that one spouse is badly injured and a certain treatment could make the difference between disability and full recovery. Also imagine, however, that administering that treatment has a 10% chance of causing more severe injury or worse, death. If the patient did not have a health care proxy, a doctor’s hands would be effectively tied in that situation, even if that patient’s entire family wanted the treatment. This is because if anything went wrong, the doctor knows his license and his assets would be on the line.
Massachusetts Does Not Recognize a Living Will as Enforceable
Some states allow for the creation of a “Living Will” as a means to direct your health care providers how to act in the event you are unable to communicate. In such jurisdictions, your doctor and other caretakers must adhere to the letter of the directions in that document. Massachusetts, recognizing the potential damage such a binding document might cause if it is outdated or if a family undergoes even minor changes, prefers the healthcare proxy model. This document also provides directions, but leaves the ultimate decision to an individual you name as your “proxy.”
Failing to Draft this Document Can Result in Unnecessary Expense
Even if non-emergency medical treatment were needed, the process it takes to legally obtain treatment authority by petitioning for a guardianship is extremely costly and time consuming compared to the expense of a health care proxy. Especially under the new UPC rules adopted by Massachusetts in 2012, the entire guardianship process can last months, accruing a significant amount of legal fees in the process. And while certain situations requiring a guardianship in Massachusetts, (e.g. taking care of a minor), cannot be avoided, unplanned medical emergencies are not one of them. Draft your healthcare proxies early and often to avoid these unfortunate situations.
When you are talking to your estate planning attorney, be sure to mention that you will require a health care proxy if he doesn’t mention it to you first. And while you may have filled out a standard form in the past at a hospital, it helps to look at the more comprehensive health care proxy documents that attorneys usually provide. Lastly, keep your Massachusetts health care proxy in a place where others will easily find it in the event you are unable to communicate like your glove compartment, or wallet, or purse.