Power of Attorney and Health Care – General – Massachusetts
Related Massachusetts Legal Forms
A durable power of attorney is a power of attorney by which a principal, in writing, designates another as his attorney in fact. The writing contains the words, “This power of attorney shall not be affected by subsequent disability or incapacity of the principal”, or “This power of attorney shall become effective upon the disability or incapacity of the principal”, or similar words showing the intent of the principal that the authority conferred continues notwithstanding the subsequent disability or incapacity of the principal.
“Disability or incapacity of the principal” means the mental illness or other disability of the principal.
The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person unless the agent has actual knowledge of the death of the principal. This is applicable only if the agent acts in good faith under the power of attorney. Actions taken in good faith, unless otherwise invalid or unenforceable, bind a successor in interest of the principal.
The disability or incapacity of a principal who has executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney in fact. This is applicable only if the agent acts in good faith under the power of attorney. Actions taken in good faith, unless otherwise invalid or unenforceable, bind a successor in interest of the principal.
If principal has executed a power of attorney and a court subsequently appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the property of the principal, the attorney in fact is accountable to the fiduciary as well as to the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled or incapacitated.
A principal may nominate in a durable power of attorney the conservator, guardian of his estate, or guardian of his person for consideration by the court. The court shall make its appointment in accordance with the most recent nomination by the principal except for good cause or disqualification.
If acts by an agent are undertaken in good faith in reliance on a power of attorney, an affidavit executed by the attorney in fact under the power of attorney, durable or otherwise, stating that he did not have actual knowledge of the termination of the power by revocation, or of the death, disability or incapacity of the principal, is conclusive proof of the non-revocation or non-termination of the power of attorney at the time the agent acted.
If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, this affidavit, when authenticated for record, must be recorded.
A power of attorney may terminate for by expiration of time or occurrence of an event other than express revocation or a change in the capacity of the principal.
DESIGNATION OF STANDBY GUARDIANSHIP PROXY
A parent or parents may designate, in writing, an adult person or persons to be appointed as standby guardianship proxy or proxies (or successor proxy or proxies) of the person or estate, or both, of a minor. The minor may be unborn at the time of the designation.
A person who is not the natural parent of the minor but who has been awarded custody of said minor by a court of competent jurisdiction may also designate a standby guardian.
The designation of a proxy and/or a successor proxy must be witnessed by two or more persons at least eighteen years of age. Neither of the witnesses may be designated as the proxy. The designation may be proved by any evidence. If a designation is executed and attested in the same manner as a will it is presumed valid.
HEALTH CARE PROXY
The “capacity to make health care decisions” is the ability to understand and appreciate the nature and consequences of health care decisions (including the benefits and risks of and alternatives to any proposed health care) and to reach an informed decision.
A “health care agent” or “agent” is an adult to whom authority to make health care decisions is delegated under a health care proxy.
A “health care proxy” is a document delegating to an agent the authority to make health care decisions. It must be executed in accordance with the statutory requirements.
A “principal” a person who has executed a health care proxy.
Health Care Agents
A competent adult has the right to appoint a health care agent by executing a health care proxy.
A health care proxy must be in writing and signed by the adult or at the direction of the adult in the presence of two other adults. The witnesses must subscribe their names as witnesses to the principal’s signature. Also, the witnesses must affirm, in writing, that the principal appeared to be at least eighteen years of age, of sound mind, and under no constraint or undue influence.
No person who is named as the health care agent in a health care proxy can act as a witness to the execution of that proxy. Every adult is presumed to be competent and every health care proxy is presumed to be properly executed unless a court determines otherwise.
A competent adult may designate an alternate health care agent as part of a valid health care proxy. An alternate serves when the designated health care agent is not available, willing or competent to serve and the designated health care agent is not expected to become available, willing or competent to make a timely decision given the patient’s medical circumstances. An alternate also serves when the health care agent is disqualified from acting on the principal’s behalf.
No person who is an operator, administrator or employee of a health care facility may be appointed as health care agent by an adult, who, at the time of executing the health care proxy is a patient or resident of that facility or has applied for admission to that facility. this restriction does not apply if the operator, administrator or employee is related to the principal by blood, marriage or adoption.
Duties of Health Care Proxy
A health care proxy must:
identify the principal and the health care agent;
indicate that the principal intends the agent to have authority to make health care decisions on the principal’s behalf;
describe the limitations, if any, that the principal intends to impose upon the agent’s authority; and
indicate when the agent’s authority becomes effective if it is determined that the principal lacks capacity to make health care decisions.
Health Care Decisions
Subject to any express limitations in the health care proxy, an agent has the authority to make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life sustaining treatment.
After consultation with health care providers, and after full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects, the agent must make health care decisions in accordance with the agent’s assessment of the principal’s wishes (including the principal’s religious and moral beliefs) or, if the principal’s wishes are unknown, in accordance with the agent’s assessment of the principal’s best interests.
The agent shall have the right to receive any and all medical information necessary to make informed decisions regarding the principal’s health care, including any and all confidential medical information that the principal would be entitled to receive.
Health care decisions by an agent pursuant to a health care proxy on a principal’s behalf have the same priority over decisions by any other person, including a person acting pursuant to a durable power of attorney as would decisions by the principal, when competent, except as otherwise provided in the health care proxy or by specific court order overriding the proxy.
A physician who is provided with a health care proxy must arrange for the proxy or a copy thereof to be inserted in the principal’s medical record.
Subject to any express limitations in the health care proxy, a health care provider must comply with health care decisions made by an agent under a health care proxy to the same extent as if such decisions have been made by the principal.
A principal may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy.
Every principal shall be presumed to have the capacity to revoke a health care proxy unless determined otherwise pursuant to court order.
A health care proxy is also revoked upon execution by the principal of a subsequent health care proxy, or, when the spouse is the principal’s agent under a health care proxy, the the divorce or legal separation of the principal and his spouse.
A physician who is informed of or provided with a revocation of a health care proxy must immediately record the revocation in the principal’s medical record and notify orally and in writing the agent and any health care providers known by the physician to be involved in the principal’s care of the revocation. Any agent or member of the nursing staff informed of or provided with a revocation of a health care proxy must immediately notify the attending physician of the revocation.
Failure to Execute Proxy – Power of Attorney
If a health care proxy has not been executed, a health care provider may rely on the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law.
A health care provider, the conservator for, or guardian of the principal, members of the principal’s family, a close friend of the principal, or the commissioner of public health may commence a special proceeding in a court of competent jurisdiction, with respect to any dispute arising under this chapter, including, but not limited to, a proceeding to determine the validity of the health care proxy; have the agent removed on the ground that the agent is not reasonably available, willing and competent to fulfill his or her obligations under this chapter or is acting in bad faith; or override the agent’s decision about health care treatment on the grounds that the decision was made in bad faith or that the decision is not in accordance with the standards set forth by statute.
(Chapter 113 )
A person of sound mind and who is eighteen years of age or older may make a gift of all or any part of his body for any purposes specified by statute. An anatomical gift takes effect upon the donor’s death, or, in the case of a living donor, at such time prior to his death as he may specify.
An anatomical gift of all or part of the body may be made by will. Such gift becomes effective upon the death of the testator. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is valid and effective.
An anatomical gift of all or part of the body may also be made by a document other than a will. Such gift shall become effective upon the death of the donor.
An anatomical gift may be made to a specified donee or without specifying a donee.
If the will, card or other document of gift, or an executed copy thereof, has been delivered to a specified donee, the donor may amend or revoke the gift by:
the execution and delivery to the donee of a signed statement, or
an oral statement made in the presence of two persons and communicated to the donee, or
a statement during a terminal illness or injury addressed to an attending physician and
communicated to the donee, or
a signed card or document found on his person or in his effects.
A document of gift which has not been delivered to the donee may be revoked by the donor in the manner set out above or by destruction, cancellation, or mutilation of the document and all executed copies of the document of gift.
An anatomical gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills, or as set out above.
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