Planning for Incapacity and End-of-Life Care

Posted in Blog, Real Estate by on January 11th, 2016

By: Dianna M. Williams | Associate

Massachusetts-Health-Care-Proxy-AttorneyWhen a person gets older, or when a person sustains a serious illness or injury, difficult health care decisions may need to be made. While you have the right to make decisions about your own medical care, an unforeseen accident or ailment could prevent you from being able to make those decisions or communicate them to others.  Therefore, it is important to consider what medical procedures and treatments you would want, including whether to receive life-sustaining treatments, before you are in that situation. It is also important to communicate those desires to your loved ones and medical providers and provide them with the power to ensure that your wishes are followed in the event that you are not able to.

Fortunately, in Massachusetts, there are instruments available to assist you in planning for incapacity and end-of-life care.

Health Care Proxy

A health care proxy is a legal document, which gives another person (called your ‘health care agent’) authority to make health care decisions on your (the ‘principal’’s) behalf when you lack the capacity (e.g. because of unconsciousness, coma, dementia or other mental limitation) to make or communicate such decisions. That means that, should a physician determine that you lack the ability to understand and appreciate the nature and consequences of medical decisions, including the benefits, risks and alternatives associated therewith, and reach an informed decision, your designated agent will be able to do so for you.  The health care agent’s authority lasts until your physician determines that you have regained capacity, though your agent’s authority can reactivate in the future if you again lose the capacity to make or communicate medical decisions.

Under Massachusetts law, a health care agent has broad power to make any and all health care decisions, including decisions about withholding or withdrawing life-sustaining procedures, on the principal’s behalf. The health care agent also has the right to receive any and all medical information necessary to make an informed decision regarding the principal’s health care. This power, however, can be limited by language contained in the health care proxy document.

Prior to making a medical decision on behalf of the principal, the agent must first consult with the principal’s health care providers and consider fully all acceptable medical alternatives regarding the principal’s diagnosis, prognosis, treatments and side effects. The agent must then make a health care decision in accordance with his or her assessment of the principal’s wishes, if known, including the principal’s religious and moral beliefs. If the principal’s wishes are unknown, then the agent must make a health care decision in accordance with his or her assessment of the principal’s best interests.

Living Wills

A living will is a document, which sets forth, in detail, the desired medical actions, treatments and procedures that a person wishes be taken in certain circumstances. This includes an individual’s desire to withhold or withdraw life-sustaining procedures.

A living will is not recognized as a valid legal document in Massachusetts. However, it is still useful, because it is recognized in other states where a person may travel.  Additionally, a living will can assist loved ones and health care providers in determining a person’s wishes regarding specific medical treatment, where that person is incapacitated and unable to communicate, and would likely be given weight in any disputed situation.

Massachusetts Medical Orders for Life-Sustaining Treatment (MOLST)

Massachusetts has recently implemented a standardized process and form for discussing, documenting, and communicating ‘Medical Orders for Life-Sustaining Treatment’, or ‘MOLST’, across health care settings in Massachusetts. MOLST was created to encourage discussions between health care providers and patients nearing the end of life about treatment options and preferences for care, including the use of life-sustaining treatments, and to provide health care providers and their patients with a mechanism for translating patients’ preferences into portable signed medical orders that travel with the patient. When completed and signed by the patient, or the patient’s authorized representative (e.g. health care proxy), and the health care provider, the patient’s MOLST form constitutes an actionable medical order that can be recognized and honored across heath care settings.

Durable Power of Attorney

A durable power of attorney is similar to a health care proxy in that, through this legal instrument, a person can appoint someone to act on his or her behalf when he or she has become incapacitated. While a health care proxy is the preferred method in Massachusetts of designating someone to make medical decisions on a person’s behalf, through a durable power of attorney, a competent adult can designate another person (called their ‘attorney-in-fact’) to manage his or her property and finances on his or her behalf. This includes, amongst other things, writing checks, depositing or withdrawing funds, filing tax returns, entering into contracts, buying or selling real estate or securities, managing the principal’s business, and applying for public benefits.

Unlike a general power of attorney, a durable power of attorney contains language evidencing the principal’s intent that the authority conferred be exercisable notwithstanding the principal’s subsequent disability, incapacity, or lapse of time. A durable power of attorney can be written so that the designated attorney-in-fact’s authority ripens upon the execution of the document (a present grant) or upon a determination of the principal’s incapacity (a springing grant).

Conclusion

Providing prior written documentation detailing your desired action in difficult medical situations is very important, as it will help ensure that your wishes are being followed and will alleviate the burden that your loved ones and medical providers could face in trying to determine your wishes in the event that you are unable to communicate.  In the same vein, giving a trusted person the authority to make these decisions on your behalf will save him or her time and stress, not to mention potential court action where there is disagreement amongst family members and medical providers on what steps should be taken.

For more information on current Massachusetts and federal laws, rules and regulations governing health care proxies, living wills, and durable powers of attorney, you can visit the Commonwealth’s website at http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/healthproxy.html.

Additionally, if you have any questions or would like assistance in creating a health care directive, please call the attorneys at Wynn & Wynn, P.C. at 1.800.852.5211 or request a free consultation.

 

Reader Comments