If an individual becomes incapacitated, it is important that someone have the legal authority to communicate that person’s wishes concerning medical treatment. Similar to a power of attorney, a health care proxy allows an individual to appoint someone else to act as their agent, but for medical, as opposed to financial, decisions. The health care proxy is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for the principal if he or she is unable to communicate such decisions. By executing a health care proxy, principals ensure that the instructions that they have given their agent will be carried out. A health care proxy is especially important to have if an individual and family members may disagree about treatment.
In general, a health care proxy takes effect only when the principal requires medical treatment and a physician determines that the principal is unable to communicate his or her wishes concerning treatment. How this works exactly can depend on the laws of the particular state and the terms of the health care proxy itself. If the principal later becomes able to express his or her own wishes, he or she will be listened to and the health care proxy will have no effect.
APPOINTING AN AGENT
Since the agent will have the authority to make medical decisions in the event the principal is unable to make such decisions for him or herself, the agent should be a family member or friend that the principal trusts to follow his or her instructions. Before executing a health care proxy, the principal should talk to the person whom he or she wants to name as the agent about the principal’s wishes concerning medical decisions, especially life-sustaining treatment.
Once the health care proxy is drawn up, the agent should keep the original document. The principal should have a copy and the principal’s physician should keep a copy with that individual’s medical records.
Those interested in drawing up a health care proxy document should contact an attorney who is skilled and experienced in elder law matters. Many hospitals and nursing homes also provide forms, as do some public agencies.
MASSACHUSETTS MEDICAL ORDERS FOR LIFE SUSTAINING TREATMENT (MOLST)
The MOLST is a medical order form that relays instructions between health professionals about a patient’s care. MOLST is based on an individual’s right to accept or refuse medical treatment, including treatments that might extend life.
MOLST is not for everyone. In Massachusetts, very elderly people or patients with a serious advanced illness at any age may discuss filling out a MOLST form with their clinician. The patient’s decision to use the MOLST form must be voluntary.
Living wills are documents that give instructions regarding treatment if the individual becomes terminally ill or is in a persistent vegetative state and is unable to communicate his or her own instructions. A living will is not a legal document in Massachusetts. The living will states under what conditions life-sustaining treatment should be terminated. If an individual would like to avoid life-sustaining treatment when it would be hopeless, he or she needs to draw up a living will. Like a health care proxy, a living will takes effect only upon a person’s incapacity. Also, a living will is not set in stone; an individual can always revoke it at a later date if he or she wishes to do so.
A living will, however, is not necessarily a substitute for a health care proxy or broader medical directive. It simply dictates the withdrawal of life support in instances of terminal illness, coma or a vegetative state.