Massachusetts Estate Planning: What to Do When Your Healthcare Proxy Cannot Be Relied Upon

The Best-Laid Plans

You did it. You did what so many of your friends and family members have not, what you yourself dragged your feet on for years longer than you should have. You made arrangements for your estate, appointed a healthcare proxy, and relaxed, knowing that your family and doctors will have a clear idea of your wishes even when you are no longer able to communicate those wishes.

And then you hit a snag: your designated healthcare proxy no longer can, or no longer will, carry out your wishes for your medical care and end-of-life treatment.

Perhaps your religious or ethical beliefs regarding extraordinary measures no longer align, or your loved one does not want the responsibility of “making the call.” Perhaps your ex-spouse was your healthcare proxy, or perhaps your healthcare proxy herself has become incapable of communicating her own wishes.

What do you do now?

Defining Documents: Livings Wills, Advance Directives, and Healthcare Proxies

A living will is a document that specifies your preferences for medical care in advance of a situation in which you are not able to communicate your wishes. For this reason, that they are done “in advance” of need, they are also called ‘advance directives.’

A healthcare proxy, also called durable power of attorney (for healthcare matters), is a designation you make that gives another individual authority to speak on your behalf and make decisions for you regarding your healthcare.

Massachusetts Laws on Living Wills, Advance Directives, and Healthcare Proxies

The Commonwealth of Massachusetts is rare among the states in that state law does not provide for living wills or advance directives. There is no specific statute governing living wills or advance directives, and so Massachusetts law does not recognize, nor enforce, these documents.

Massachusetts does, however, recognize healthcare proxies, which makes it even more important that your designated healthcare representative know your wishes and be prepared to carry them out, in the absence of written instructions.

Changing Healthcare Proxies

In Massachusetts, a healthcare proxy may be revoked at any time, whether orally or in writing. Of course, the preference would be in writing—something an attorney experienced in estate planning can help you with.

A physician informed of a revocation of health care proxy is required, by law, to note this in your medical record and contact other members of your medical team to make sure the change is known.
In cases where your ex-spouse was previously your healthcare proxy, Massachusetts immediately revokes the proxy upon legal separation or divorce.

Expecting the Unexpected

Estate planning may seem like a big task that you can finish and move on from, but it is in fact an ongoing process of refining your wishes, adjusting to changing realties, and changing your legal documents to reflect your wishes.

As experienced estate attorneys, we can help you on your journey, whether you need to change your healthcare proxy or are just getting started with estate planning. Call our office today to discuss your options.

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