Read the Fine Print Beware Invalidating Your Custom Health Care Proxy with a Generic One

Admission to the hospital is not the appropriate time to consider terminal-illness decisions, as your typical primary concern is a positive outcome of your hospitalization. As such, it is best to consider health care decisions in a less-stressful situation. A bigger problem comes when you have already executed a health care proxy as part of your overall estate plan, and you then hastily fill out and sign the hospital form. Execution of the new form revokes your prior health care proxy, thereby stripping you of the carefully thought-out intentions provided for in the prior, now-revoked document.

In 1991, the Commonwealth of Massachusetts enacted a ‘Health Care Proxy Statute’ in response to the Nancy Cruzan case, in which a young woman’s family waged a seven-year battle to have their daughter’s feeding tube removed after she was left in a permanent vegetative state following a car crash.

A health care proxy is a document that provides written instructions by you, referred to as the principal, which appoints a health care agent (or proxy agent) to make medical or health decisions when you are incapacitated and unable to make or communicate such decisions. When the document is executed, and you have the competence and capacity to communicate your desired health care decisions, the power granted in the health care proxy is dormant. The document has a ‘springing’ power that is in effect only upon your incapacity.

This essential document concerns not only the choices you make about your health care, but also the relationships you have with your family, physician, and others that may be involved in your care. It helps to guide them, so they may make decisions on your behalf that are in line with your desires instead of second-guessing what you would have wanted. In the event that a health care proxy was not executed, it may be necessary for your family members to file a petition with the Probate Court to have a legal guardian appointed to make medical decisions on your behalf. This impersonal treatment is public, expensive, and may be lengthy.

The best health care proxies that address your concerns and intentions are not simply forms. They can address such issues as:

Living-will language: Whether or not you wish to be kept alive by machines in the event that independent physicians concur that you are in an irreversible coma or other terminal condition with no chance of recovery;

Organ donation: Whether or not you wish to be an organ donor;

Creation or burial: Whether or not you wish to be cremated or buried;

Burial instructions: Where and how you wish to be buried;

Pain-control preferences; and

HIPAA release language.

The Health Insurance Portability and Accountability Act, known as HIPAA, enacted privacy regulations effective as of April 2003. These regulations are intended to ensure the privacy of everyone’s medical information, and there are criminal and civil penalties if the medical professionals do not comply. HIPAA imposes fines of up to $250,000, as well as jail time for up to 10 years, in the event any health information is wrongfully disclosed. Because of this, without a HIPAA release, you cannot gain medical knowledge of family members over the age of 18.

As such, health care proxies drafted after April 2003 should include ‘HIPAA language’ that allows medical providers to disclose medical information to the health care agent, which then allows the agent to make informed medical decisions.

A Massachusetts health care proxy must meet the following four requirements:

• The document must name the principal and the agent;
• The document must state the principal’s intent that the agent will have authority to make health care decisions on behalf of the principal;
• The principal must provide what limitations, if any, the principal imposes on the agent’s authority; and
• The document must provide that the agent’s authority commences only if it is determined that the principal lacks the capacity to make his or her own health care decisions.

You can revoke a Massachusetts health care proxy at any time by giving notice orally (not recommended) or in writing to the agent or to one of your health care providers.

Technically, there is no Massachusetts statutory requirement that a health care proxy be notarized, and most often, the health care proxies executed in hospitals are not notarized. While documents that are not notarized are effective in Massachusetts, non-notarized health care proxies may lose effect beyond Massachusetts state lines, which is unfortunate, as we live in a transient world with extended travel becoming more of the norm.

Once the document is executed, you should provide copies to your physicians, hospital, health care agent, family members, and other advisors. You should also keep a list of individuals and institutions that have a copy in case you want to revoke the document or change it.

Although the elderly contemplate execution of a health care proxy more so than younger people, it is recommended for everyone over the age of 18. Approximately 80{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of those Americans who are in a persistent vegetative state are between the ages of 18 and 30 years old. The most appropriate time to draft and execute a health care proxy is when you have time to reflect and consider your health care wishes.

An experienced estate-planning attorney can provide you with the alternatives and options available to make the document suitable for your situation so that you do not have to rely on a statutory form filled out under inordinate circumstances.v

Todd C. Ratner is an estate-planning, business, and real-estate attorney with the Springfield-based law firm of Bacon Wilson, P.C. He is a member of the National Academy of Elder Law Attorneys and recipient of Boston Magazine’s 2007 Massachusetts Super Lawyers Rising Stars award; (413) 781-0560;tratner@baconwilson.com