Important Differences Between Health Care Proxies and Living Wills

Advance Directives, such as Health Care Proxies and Living Wills, allow people to retain control over medical decisions. Massachusetts law allows people to make their own Health Care Proxies, but does not officially recognize Living Wills. A Health Care Proxy designates another person to make medical decisions should you be unable to do so, and a Living Will allows you to list medical treatments that you would or would not want if you became terminally ill and unable to make your own decisions.

The Massachusetts Health Care Proxy Law (Massachusetts General Laws, Chapter 201D) permits people to appoint a Health Care Proxy (called an "Agent" in the law) using the Health Care Proxy Form. Health care providers and facilities are bound to follow your Agent's decisions as if they were your own. You are free to choose almost anyone as an Agent, but it is important that you discuss your treatment preferences with your Agent. You may also write on the form certain treatments that you do or do not want, or limit the authority of your Agent. You may also appoint an Alternate Agent, in case your Agent is unavailable or unable to make decisions regarding your care.

The Proxy becomes effective when your doctor determines that you are unable to make or communicate health care decisions. Your doctor then must record in the chart the cause and nature of your incapacity as well as its extent and probable duration. In order to appoint an Agent, you must be at least 18 years of age. You do not need a lawyer to fill out the form and make it legally binding. In order for it to be binding, you must sign the form in the presence of two adult witnesses, neither of whom are either your Agent or your Alternate Agent.

Once you have signed the form, it is recommended that you make at least four copies. Keep the original yourself, and give copies to your Agent, Alternate agent, your physician, and anyone else who may be involved in treatment decisions if you ever become unable to make decisions for yourself. Copies of the form are as legally valid as the original. You may designate anyone over 18 years of age to be your Agent or Alternate Agent, except the administrator, operator or employee of a health care facility, such as a hospital or nursing home where you are a patient or resident, unless that person is related to you by blood, marriage or adoption.

The form remains valid unless you revoke it by: signing another Health Care Proxy form at a later date; legally separating from or divorcing your spouse and your spouse is named as your Agent; notifying your Agent, your doctor, or other health care provider, orally or in writing, that you want to revoke your Health Care Proxy, or doing anything else that clearly shows that you want to revoke the Proxy, for example, tearing up or destroying the Proxy, crossing it out, etc.

Massachusetts is one of only three states that recognizes Health Care Proxies but does not recognize Living Wills. Living Wills are still potentially useful because they guide Agents and physicians about the types of choices a person would make.

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