Legal Advisor: Advance Directives

Case Study

Mrs. Smith, an 86 year-old woman is admitted to a Massachusetts hospital with pneumonia.  Mrs. Smith has Alzheimer’s disease and is suffering from advanced dementia.  After consulting with the appropriate specialists, the attending physician determines that Mrs. Smith lacks the capacity to make or communicate health care decisions.

Case Scenarios

Case Scenario 1

Mrs. Smith appointed her niece as her health care agent in a duly executed health care proxy.  Mrs. Smith appointed her son as agent in a duly executed durable power of attorney document.  The attending physician has recommended several treatment options of varying degrees of invasiveness.  Mrs. Smith’s niece and son disagree on the best course of treatment.  Who has the decision-making authority regarding treatment options?

[In this instance, Mrs. Smith’s niece would most likely have the decision-making authority.  Under Massachusetts law, health care decisions made by the agent appointed by a health care proxy have priority over those of any other third-party, including someone with durable power of attorney,  except as otherwise provided in that health care proxy, or by a specific court order overriding the proxy. (Chapter 201D: Section 5 of the Massachusetts General Laws)]

Case Scenario 2

Mrs. Smith’s niece, the duly appointed health care agent under Mrs. Smith’s health care proxy, has consulted with the attending physician, and fully considered the acceptable medical alternatives regarding diagnosis, prognosis, treatments and treatment side effects.  She has determined that a treatment plan requiring intubation is in the best interest of Mrs. Smith, and in accordance her assessment of Mrs. Smith’s wishes.

Although still considered to lack capacity to make health care decisions, Mrs. Smith nonetheless objects to being intubated.  Should the attending physician respect the wishes of the patient and not intubate her?

[The physician should respect the wishes of the patient and not intubate her.  Although a patient may lack capacity, in instances where the patient disagrees with a health care decision made by a health care agent pursuant to a health care proxy, the patient's decisions shall prevail unless a judge has determined that the patient lacks capacity to make health care decisions. (Chapter 201D: Section 6 of the Massachusetts General Laws)]

Case Scenario 3

In the copy of Mrs. Smith’s most recent health care proxy on file, Mrs. Smith had appointed her husband as the agent.  Since the execution of the health care proxy, Mrs. Smith and her husband have divorced.  Mrs. Smith’s ex-husband has requested access to Mrs. Smith’s test results to assist him in making health care decisions for Mrs. Smith.  How should the attending physician respond to these requests?   

[Notwithstanding any general or specific law to the contrary, the health care agent has the right to receive any and all medical information necessary to make informed decisions regarding the patient's health care, including any and all confidential medical information that the patient would be entitled to receive.  However, in this instance, Mrs. Smith’s ex-husband is no longer the proxy agent.  Divorce or legal separation revokes spousal health care proxies automatically.  Therefore, the physician should proceed as though there is no health care proxy. (Chapter 201D: Section 7 of the Massachusetts General Laws)]

Case Scenario 4

The attending physician is having a hard time getting in contact with Mrs. Smith’s niece, the duly appointed health care agent under Mrs. Smith’s health care proxy, to discuss potential treatment plans.  Voice messages are not returned, and when Mrs. Smith’s niece does answer the phone, she states that she does not have the time to deal with this.  Other members of Mrs. Smith’s family are alarmed an upset by this. There is no alternate health care agent listed on Mrs. Smith’s health care proxy.  Can the physician look to friends or family members to make health care decisions? 

[The attending physician and/or Mrs. Smith’s family members may look to the courts to have Mrs. Smith’s niece removed as health care agent under the health care proxy.  Under Massachusetts law, health care providers, the conservator for, or guardian of the principal, members of the principal’s family, a close friend of the principal, or the commissioner of public health may commence a special proceeding in a court of competent jurisdiction, to have the agent removed on the ground that the agent is not reasonably available, willing and competent to fulfill his or her obligations or is acting in bad faith.  Such a proceeding may also be commenced to override the agent’s decision about health care treatment on the grounds that the decision was made in bad faith or the decision is not in accordance with an assessment of the principle’s wishes, or the best interests of the principle(Chapter 201D: Section 17 of the Massachusetts General Laws)]
 
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