How can I be sure that if I get very ill, my wishes about health treatment will be respected?

Produced by South Middlesex Legal Services
Created May, 1991

Health Care Proxies

Have you wondered what your rights as a patient are to make decisions for yourself? Have you wondered what would happen to you if you were ill and unable to decide what kind of treatment you wanted? The Massachusetts Legislature passed a bill requiring that health care providers honor Health Care Proxies which has also aroused the interest and concern of elders. This article addresses what rights you have to refuse treatment, who makes medical decisions if you cannot, and what documents can ensure that your wishes are respected.

What rights do you have in choosing treatment?

A mentally competent patient has the right to make all decisions about health care. Your doctor should discuss with you what is wrong with you, what different treatments are available, what the risks and side effects are, what the benefits are, and what the likelihood of success is. You may decide between those treatments or you may decide to forgo treatment altogether. You have the absolute right to decide what happens to your body.

What happens if you are not able to make decisions?

Under Massachusetts law an incompetent patient has all the same rights to refuse treatment as one who is mentally capable. However, if the patient cannot understand information or express an opinion, someone else must act on the patient's behalf. Usually family members consult with health care providers and come to an agreement. In Massachusetts the person who decides for an incompetent patient must look at the decision from the individual patient's point of view. What would that particular person want? In making the decision, the patient's express wishes are considered, along with her religious views, her philosophy, the activities she enjoyed, the effect the disease will have on her, etc. Only if no evidence is available, does the decision become what would be best for the patient, rather than what would the patient want.

Sometimes the decision cannot be agreed upon by all of those involved. The family may not agree. The doctor or hospital may feel uneasy about the decision. There may be no family to consult. In such situations, the case may be brought before a judge. The judge may simply make the decision for the patient after hearing from everyone involved, or she may appoint a guardian to make the decision. In either situation, the question is still, what would the particular patient have wanted?

How can you be sure that your wishes will be honored?

Massachusetts passed a law which allows you to write a "Health Care Proxy." This document names a person, called an "agent," who will make decisions for you. The new law requires doctors and other health care providers to act on decisions made by your agent just as if you had made the decision yourself. Providers must disclose all medical information to your agent just as they must to you. This document can eliminate the need to go to court, since there will be one designated person to make decisions. An agent cannot force a doctor or facility to carry out her requests. However, the agent can transfer the patient to a provider who will honor the decisions made.

What are my options?

First, decide what you really want. You may wish to consult with your doctor about what it's like to be in an impaired state, what kind of treatments you might receive under what circumstances, etc. Next, talk to your agent and your family. In order to follow your wishes, your agent needs to know exactly how you feel. The more specific and firm you are, the more likely your wishes will be honored. The agent's role will come at a time of illness and great sorrow. Such a role bears a heavy burden; you will ease that burden if your agent and your family know they are implementing decisions you made for yourself rather than imposing their values on you.

You may have seen various documents in hospitals or publications. You should be sure to use the "Health Care Proxy" named in the new Massachusetts law rather than a Living Will. The new law authorizes the use of proxies but does not recognize Living Wills or Powers of Attorney for Health Care Decisions. You should be sure to follow all the formalities the law requires.

Some attorneys prefer to give a broad grant of authority to the Health Care Agent without any indication of the client's preferences. Alternatively, you can express your preferences but still leave the final decision in the Agent's hands. In addition, you may insert any limits you want to put on your agent's authority. The Agent cannot act in any way not authorized. For example, you may limit the Agent's authority by stating, "I do not authorize the Agent to allow the administration of a feeding tube." The Agent then has no right to consent to the use of a feeding tube, no matter what the circumstances. Many people use a feeding tube during a severe illness and then recover. Eliminating the use of a specific treatment can create problems later on. Moreover, as technology advances, new treatments you never knew about may be prohibited by the language in your Proxy. We therefore advise great care in limiting the Agent's authority.

You may wish to consider at the same time whether you wish to write a Durable Power of Attorney. A power of attorney may authorize your agent or another person to do more for you than is allowed in the Health Care Proxy. For example, you can name the person you would like to have serve as your guardian or conservator if necessary. You can give someone the authority to write checks, to dispute your medical bills or insurance denials, and so forth.

How will I draft such a document?

Many forms are available which you may wish to use. If you want, you can call South Middlesex Legal Services and have one of the attorneys help you draw up a Health Care Proxy. Alternatively, you can write your own proxy. In any proxy, you must state your name; state the name of the agent and alternate agent; state that the agent will have the power to make medical decisions; state that this power begins when you have become incapable of making these decisions yourself; sign it before two witnesses, neither of whom are name as an agent. You may wish to include limitations on the agent's powers or preferences you have for medical treatment. If you use a form, you may wish to specify these powers or preferences as well.

What if I already have a document on this subject?

Living Wills have not been recognized by the new law and are not recommended. Such a document may be considered as evidence of your wishes but is not binding on anyone. Similarly the Health Care Power of Attorney is not specifically authorized in the bill and is no longer recommended. However, if you signed a "Durable Power of Attorney" before December 6, 1990 which gave someone authority to make medical decisions for you, it has the same legal effect it did when you wrote it. If you are not sure what effect your document will have, you may wish to get a new one.

These are difficult decisions, difficult to consider and difficult to resolve. However, you may find that using this document and talking the subject over with your doctor and your family will ease your mind of some serious concerns. If you have further questions:

South Middlesex Legal Services

Find Legal Aid

You may be able to get free legal help from your local legal aid program. Or email a question about your own legal problem to a lawyer.

Ask a Law Librarian

If it's
9am and 4pm