The “Other” Parts of Your Estate Plan – Part 2: Health Care Proxy

Kristen R. Testaverde, Esq.

As I mentioned in Part 1, there are “other” parts to your estate plan beyond your will that are just as, if not more, important.  Here, I discuss the Health Care Proxy.  Where a Power of Attorney protects your finances, the Health Care Proxy protects your health care needs.

Health Care Proxy (HCP):   When an individual, known as the ”principal,” executes a Health Care Proxy, he/she appoints an agent to make decisions regarding his/her health when he/she becomes incapacitated under the law.  This is a legally binding document.  The  agent’s powers are usually broad, incorporating the power to make decisions regarding medical treatment as well as mental health.  Only one agent may serve at a time, but the document should provide for a successor agent to step in in the event the primary agent is unable or unwilling to serve.      

Living Will:    A living will is, generally, a document expressing the desire of the principal that he/she is not kept alive by artificial means if he/she is in the process of dying or is terminally ill.   Unlike the Health Care Proxy, the living will is not legally binding in Massachusetts.  Having a living will is valuable however, in the sense that it can express the wishes of the principal when he/she is no longer capable of doing so.  It can also provide some direction for the agent making the decision, or resolve disputes between family members facing this decision.

If you do not have a Health Care Proxy and become incapacitated, those who would like to make decisions on your behalf will have to seek a Guardianship with the local probate and family court.  Much like the lack of Power of Attorney discussed in Part 1, the process of seeking a Guardianship is far more costly than executing a Health Care Proxy, as attorneys fees for drafting documents and appearing in court will likely be incurred. 

In addition, as I often see in practice, nursing homes in Massachusetts will not admit patients without a Health Care Proxy or Guardianship on file for liability purposes.  This can lead to individuals remaining in hospitals which are no longer necessary for their care while Guardianships are sought.