Advance Care Planning
Frequently Asked Questions
About Advance Directives
What is an advance directive?
An advance directive is a legally binding document in which you express your wishes for your health care in the event that you become unable to make your own health care decisions. A health care proxy is an advance directive in which you appoint another person to make health care decisions for you if you are unable to make them yourself. In Massachusetts, health care proxies are authorized by chapter 201D of Massachusetts General Laws.
How does a durable power of attorney differ from a health care proxy?
A power of attorney is a document in which you, as principal, appoint another person to serve as your attorney in fact (in other words, as your agent) in business and financial matters affecting you or your property. A power of attorney is “durable” if the power it confers remains effective even though you later become incapacitated. Your attorney in fact has no authority to make health care decisions for you. To appoint an agent to act for you in health care matters, you must sign a health care proxy.
What is a living will?
A living will is a written statement in which you declare your preferences for medical treatment if you become so ill that there is no reasonable hope of recovery and you are unable to make or communicate health care decisions. Living wills are not legally binding in Massachusetts. That is why we strongly urge you to complete a health care proxy form and Personal Wishes statement after discussions with your family and health care agent about your health care treatment, in the event you cannot speak for yourself.
How do I choose an agent?
Your health care agent should be someone you know and trust. He or she should be a person with whom you are comfortable discussing your wishes regarding your health care, including such issues as terminal illness, treatment alternatives such as hospice care, and the withholding or withdrawing of life-sustaining measures. Your health care agent should understand your values and beliefs, and be someone you are confident can act as your advocate in making your wishes known and seeing that they are respected.
Do I need an alternate?
It is not necessary to name an alternate health care agent, but it is advisable to do so if your health care agent may not be available to act for you at all times.
Who can witness the signature?
Anyone age 18 or older, including a family member, can witness your signature on your health care proxy. The only people who cannot serve as witnesses are your health care agent and your alternate health care agent.
How do I fill out the form?
To complete the health care proxy form, fill in the blanks identifying yourself, your health care agent and, if you choose to name one, your alternate health care agent. Sign the form in the place indicated for your signature, in the presence of two adult witnesses. The witnesses must also sign the form. By doing so, they are affirming that they saw you sign the form and that they believe you to be at least 18 years old, of sound mind, and acting of your own free will.
If you are physically unable to sign the health care proxy form, someone other than a witness may sign your name for you, provided he or she does so at your direction and in the presence of the two witnesses.
Do I need a lawyer?
You may wish to talk to a lawyer about the health care proxy, and many lawyers will prepare a health care proxy as a matter of course as part of an estate plan. But you do not need a lawyer to complete the form.
When does my health care proxy go into effect?
Your health care proxy becomes effective as soon as it is signed and witnessed. Your health care agent, however, cannot act for you until your attending physician has certified in writing that you are "unable to make or communicate your own health care decisions." If your physician determines that you have regained the ability to make your own health care decisions, your health care agent's authority to make them for you will cease.
How do I make my specific wishes known to my health care agent?
You can make your specific wishes known to your health care agent in a conversation or in a separate personal wishes statement. You will not be able to consider every possible situation that might require your agent to act on your behalf, but you should let your agent know how you feel about those conditions, illnesses and treatments that concern you the most. If you wish to limit your agent’s authority in any way, you should describe those limitations specifically in the blank space provided on the health care proxy form.
What is a personal wishes statement?
A personal wishes statement is a document in which you communicate to your health care agent your wishes regarding your medical treatment and the care you wish to receive in the event of a terminal illness.
Is a personal wishes statement legally enforceable?
No, a personal wishes statement is not legally enforceable. However, the law authorizing the creation of a Health Care Proxy requires a health care agent to make health care decisions in accordance with the agent’s assessment of the principal’s wishes. A personal wishes statement enables you, as the principal, to make your wishes known to your health care agent.
Can I direct that my organs be donated in a personal wishes statement?
You can express your wish that your organs be donated in a personal wishes statement. However, because a personal wishes statement is not legally enforceable, any expression it contains of your wish to donate your organs is not legally binding. The most effective means to donate your organs is to complete an organ donor card at the Registry of Motor Vehicles.
Can I direct my funeral arrangements in a personal wishes statement?
No, a personal wishes statement is not a proper place for funeral arrangements. A letter of instructions should be left with family members or a funeral director.
How do I make my wishes known to emergency personnel outside a hospital?
Ask your physician to obtain for you a Comfort Care/Do Not Resuscitate Order Verification, in either paper or bracelet form, from the Department of Public Health. EMS personnel who encounter a person in respiratory or cardiac arrest who has such a form or bracelet will not resuscitate that person, but will provide palliative care as appropriate. Persons in respiratory or cardiac arrest without such a form or bracelet will be resuscitated by emergency personnel.
What if I change my mind?
If you change your mind about your health care proxy at any time, you can revoke it by tearing it up; by telling your health care agent, your alternate, your doctor, your nurse or your lawyer that you are revoking it; or by doing anything else that clearly shows that you no longer intend the health care proxy to have effect.
If you fill out a new health care proxy form, any earlier health care proxy of yours will automatically be revoked. Your health care proxy will also be automatically revoked if you legally separate from or divorce a spouse who was named as your health care agent.
Do I need to renew the directive?
No. Unless you revoke your health care proxy or it is revoked automatically, it will remain in effect until you die. You should review it regularly to make sure that the names, addresses and telephone numbers of your health care agent and alternate health care agent are still current, and that the people you have named as your health care agent and alternate health care agent are still willing to serve.
How will my doctor know if I have a health care proxy?
You should be sure to tell your doctor that you have completed a health care proxy, and you should make him or her aware of your treatment preferences.
Where should I keep my health care proxy? Who should have copies?
Keep your original health care proxy with other important papers in a place that is safe but easy to find. Do not keep it in a safe deposit box.
You should give a copy of your health care proxy to your health care agent, your alternate health care agent and your doctor. You may also wish to give copies to family members, your lawyer and your clergy.
What happens if I sign a health care proxy in another state, and then move to Massachusetts?
A health care proxy that is executed in another state and complies with that state’s laws is enforceable in Massachusetts. Nevertheless, the better practice for a new Massachusetts resident is to sign a Massachusetts health care proxy as soon as it is convenient to do so.