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Estate and Elder Law

Creation, Execution And Revocation Of Massachusetts Health Care Proxies

  • By John Dugan

  • Massachusetts law provides for the execution, administration and governance of health care proxies. A health care proxy is a written instrument signed by a competent adult appointing another competent adult to make health care decisions in the event of his or her subsequent incapacity. This Emerging Issues Analysis, written by John Dugan, a partner at Doherty, Ciechanowski, Dugan and Cannon P.C. in Franklin, Mass., examines the requirements for creating and executing a valid health care proxy, and the process of revocation of a proxy that is no longer desired.

    He writes: “Guardianship is a sound and long-standing process that empowers the court to appoint a responsible person to oversee the care and protection of an individual who is incapable of caring for himself. Guardianship proceedings necessarily involve filings, appearances, public disclosure, expenses and, on occasion, extended litigation. Most states, including Massachusetts, have a process by which a competent individual can avoid guardianship by appointing a person to assume responsibility for the individual's care, should he or she become incapacitated. A proxy allows an individual to appoint and known and trusted surrogate, to articulate treatment preferences, and to define the parameters of the surrogate's authority. This appointment is accomplished privately and solely by the appointing party.

    “General Laws, Chapter 201D provides for the execution, administration and governance of health care proxies in Massachusetts. A health care proxy is a written instrument, signed by a competent adult (the Principal), appointing another competent adult (the Agent) to make health care decisions in the event of the Principal's subsequent incapacity.

    “Health care proxies must be in writing, signed by the principal and subscribed by two competent adult witnesses. The document must include (1) the identity of the principal and the agent, (2) a declaration of the principal's intent to grant the agent the authority to make health care decisions, (3) a statement that the agent's authority becomes effective when it is determined that the principal lacks the capacity to make health care decisions and (4) definition of any limitations on the agent's authority. An alternate agent should be designated to act in the event that the primary agent is unavailable to serve.”
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