Generation to Generation

Health Care Proxy. Under Massachusetts law, so long as you are 18 years of age or older, you can name another adult, called a “health care agent”, to make medical decisions for you in the event a physician determines you are unable to make the decisions or communicate your wishes about your care. You do this by signing a document called a “Health Care Proxy” in the presence of two independent witnesses. In other states, these same principles apply, though the terminology may be different. The Health Care Proxy can be a relatively simple one-pager that appoints the health care agent and often a series of successors if the person named first cannot act for any reason. Or it can also cover a bit more ground, providing the agent with additional authority and even guidance on how you would want the agent to act in certain medical situations, including when there may be a question of terminating life support. While this guidance can be extremely helpful, it is important to recognize that the ultimate decision will be in the agent’s hands, based on what the agent hears from the clinicians and believes to be your wishes in the circumstances you are facing.

Many parents celebrate their child’s 18th birthday without realizing that it marks the point at which they no longer can serve as the decisionmaker for their child’s health care. When a child reaches this milestone, he or she should sign a Health Care Proxy naming someone they trust, like a parent, to make health care decisions for them if they cannot themselves. Similarly, for an adult child with aging parents, that child will want to make sure that each parent has not only named a primary health care agent (typically the other parent), but also a successor health care agent just to be safe.

Medical Orders for Life Sustaining Treatment. You may have far more specific intentions you want to make known to your health care agent and/or clinicians, if certain treatments become medically indicated and you have lost your decision-making ability. For that purpose, you would turn to the DPH-approved standardized form called “Medical Orders for Life-Sustaining Treatment”, or “MOLST”. The MOLST form covers aspects of your care such as resuscitation, intubation, artificial nutrition, and artificial hydration. It is signed by the patient, the patient’s health care agent or guardian, or the parent or guardian of a minor, and must be co-signed by a physician, nurse practitioner, or physician assistant confirming that the form accurately reflects the clinician’s discussion with the patient. The instructions include recommendations for making the MOLST form visible to EMTs.

Neither. Massachusetts law provides an option if clinicians are looking for a medical decision from you, but you are incapacitated and have not given anyone the authority to step in on your behalf. In this situation, a guardian can be appointed for you by the probate court. The probate court process, though a welcome safety net, has a number of hurdles that are meant to protect you, but these hurdles can make the process time-consuming and expensive. In all cases, a clinician must certify the need for guardianship.

If you are considering any of these papers or wish to update a health care proxy you signed years ago, please reach out to your attorney contact at Nutter.