Legal Advisor: Advance Directives
Incapacity
Capacity to make health care decisions is defined by Massachusetts
law as “the ability to understand and appreciate the nature and
consequence of health care decisions, including the benefits and risks
of and alternatives to any proposed health care, and to reach informed
decisions.” incapacity of a principle is determined by his or her
attending physician (who has not been appointed the principle’s
agent). the determination must be in writing in the principle’s
medical record and include the “physician’s opinion
regarding the cause and nature of the principle’s incapacity as
well as its extent and probable duration.” if the incapacity stems
from mental illness or a developmental disability, the attending
physician must consult with the appropriate specialist to determine
incapacity.
Once the determination of incapacity has been made, the physician
must notify verbally and in writing: 1) the principle if there is any
indication he or she might comprehend the notice, 2) the agent, and 3)
and the director of any mental health facility to or from which the
principle was transferred. A physician may also make the determination
that a principle has regained capacity, in which case, the agent’s
authority stops and the principle himself must consent to treatment.
Health care proxies executed in another state, which comply with the
laws of that state, are valid in Massachusetts.
Next: Conclusion
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