Many people face a period of physical/legal incapacity at some point in their lives, either through old age, an accident, or a medical condition. These same people often require medical treatment, but are unable to make decisions regarding their care. Different states have different methods for dealing with this problem. Here in Massachusetts, there are two options. The first is to petition the Probate and Family Court to appoint a legal guardian. The second is for someone else to make medical decisions on the incapacitated individual’s behalf pursuant to a Health Care Proxy.
Because of the considerable expense and difficulty in obtaining a guardianship, a health care proxy is a much better solution. However, an individual must sign his or her health care proxy before they become incapacitated.
So how exactly does a Health Care Proxy work?
This is an interesting question. By signing a health care proxy, an individual nominates someone else to make medical decisions on their behalf. The person signing the health care proxy is called the “Principal,” and the nominated person is called the “Health Care Agent.” Typically, spouses will nominate each other, elderly parents will nominate one of their grown children, etc.
There is a common misconception that the health care agent decides on their own what course of medical treatment is best for the principal. This is not true. In fact, the health care agent must determine what the principal’s own wishes would be, if they were of sound enough mind to formulate them. Then the agent must communicate these would-be-wishes to the principal’s health care providers, so that they may be carried out. In many cases, it is easy for the health care agent to determine the principal’s wishes. In other cases it is more difficult, and the agent must infer the principal’s likely wishes, through his knowledge of the principal (and any other information available to him).
In some cases, especially regarding end of life care, the health care agent’s role can be very difficult. Fortunately, estate planners have another tool in our arsenal to assist in this situation: the Living Will. A living will is a document that states an individual’s medical wishes in various situations, most often focusing on end of life care. In some states, a living will is a binding legal document, that health care providers can rely on while providing care. Massachusetts has not granted binding legal status to living wills, instead preferring health care proxies to govern the care of incapacitated persons.
However, legal practitioners in Massachusetts still recommend that their clients sign living wills, for two reasons:
1) A living will tells the health care agent the wishes of the principal. This eases the burden on the agent, and increases the probability that the principal will receive the care that they desire.
2) A living will is evidence of the principal’s wishes, which can protect a health care agent from accusations of wrongdoing.
For these reasons, a Health Care Proxy, combined with a Living Will, provide the best solution for dealing with an incapacitated client’s medical needs. Remember, a great estate plan won’t just cover you when you die, it will cover you while you’re still alive too.