Demystifying the Health Care Proxy (and Other Related Legal Documents)
by Lauren M. Darisse, Esq., Director of Compliance, Risk Management & Legal Services
We’ve all probably heard the term “Health Care Proxy.” We know that it is a highly beneficial document that grants us even greater authority over our own health care choices; however, it’s likely that some of us have been caught by surprise when someone asks questions about this document. What exactly is it? How is it different from other legal forms? When does it go into effect? It’s easy to get tripped up by a lot of documents that seem to do the same thing. Let’s take a closer look to help paint a better picture for ourselves and our patients. If questions pop up along the way, I am happy to be a resource!
*Please note that the following is specific guidance for Massachusetts only. If a person is routinely in another state (s)he should execute documents which comply with the laws of that location as well.
Advance Directives (“Living Wills”)
- Legal (not medical) document that lets others know details about a person’s preferences if (s)he were unable not make medical decisions for him/herself.
- IS NOT legally binding in Massachusetts.
- Goes into effect only when a person is declared incapable of making his/her own medical decisions.
- Just because they aren’t legally binding doesn’t mean they aren’t helpful. If a valid health care proxy exists then this document will provide the named agent with additional insight on specific wishes.
Health Care Proxy
- Legal (not medical) document which is a type of advance directive which allows a person (sometimes referred to as the “principal”) to select someone (sometimes referred to as the “agent”) to make health care decisions on his/her behalf.
- IS legally binding in Massachusetts.
- Goes into effect only when the person is declared incapable of making their own medical choices.
- Signed by patient and two witnesses. No person who has been named as the agent shall act as a witness.
- What about HIPAA? The person named as the agent has the right to receive any medical information that the patient him/herself is entitled to receive. Medical providers need a copy of the proxy to do this.
- In the event that the person’s clinician determines that the (s)he has regained the ability to make health care choices for him/herself then the agent shall no longer have authority to act. Unless it is revoked, it can always go back into effect if the situation changes.
MOLST (“Medical Orders for Life Sustaining Treatment”)
- Medical (not legal) standardized document signed by patient and clinician with medical orders that are effective immediately based on a current medical condition.
- Allows anyone with an advanced illness to define current medical orders, as opposed to the health care proxy which names another person to make medical decisions in the future.
CC/DNR Form (“Comfort Care/Do Not Resuscitate”)
- This form is still valid in Massachusetts; however, it is becoming slowly antiquated as the state transitions to the MOLST.
Massachusetts Durable Power of Attorney
- Financial (not medical or legal) document which allows a person to select someone (sometimes referred to as the “attorney in fact”) limited or broad power to manage the person’s finances, property and business matters.
- “Durable” means that the document will be valid even if the person becomes incapacitated or disabled. To ensure that the document is durable it must be in writing and contain language which indicates that it will not be affected by the future disability or incapacity of the person.
- This document does have limitations. Some financial matters (like creating or changing a will) can’t be delegated.