By Attorney Suzanne Sayward (July 2010)

In my law practice, clients often tell me about the difficulties they face in dealing with health care issues for family members. These stories include instances of not being able to get information about an elderly parent’s condition, confrontations with doctors or other caregivers about appropriate treatment, or being faced with making a health care decision for a loved one without knowing his or her wishes. Here are five important facts to know about health care documents.

1. Your spouse does not have the right to make health care decisions for you unless you legally authorize him or her to do so. People are often surprised to learn that being married does not automatically mean your spouse has the right to make health care decisions for you if you are incapacitated. This is also true with respect to parents of children who are over the age of 18. Even though you may be providing full financial support for your 19-year-old college student, you do not have the legal right to make a decision about her health care or even have access to her medical records.
2. A Health Care Proxy is the legal document we use in Massachusetts to designate a health care agent. A Health Care Proxy is the legal document used in Massachusetts to appoint a person to make health care decisions on behalf of another. The appointed person is called your health care agent. It is important to appoint one or more alternate health care agents to assume this role/responsibility in case your primary agent is unavailable. Every person 18 years and older should create a Health Care Proxy.
3. A HIPAA Authorization is needed in addition to a Health Care Proxy. The Massachusetts Health Care Proxy is a so-called “springing” document. This means your health care agent may only make decisions about your care, have access to your medical records, or obtain information from your doctor or other caregivers after your doctor has determined you are no longer able to make or communicate health care decisions yourself. While it makes sense that no one should make health care decisions for you if you are able to do so yourself, in my experience it is often valuable for family members to be able to access information from doctors and other caregivers so they can help their sick loved one make important decisions. The federal Health Insurance Portability and Accountability Act (HIPAA) imposes monetary fines on caregivers who disclose medical information without authorization to do so. While this sounds like a good idea, unfortunately it can result in family members being denied any information about a loved one’s status. A HIPAA Authorization form can be used to list the people you want your doctors to speak with in the event you are ill.
4. Massachusetts does not have a Living Will law. A Living Will is the document used to express your wish that you would not want extraordinary medical measures used to prolong your life in the event of a fatal condition or terminal illness. We do not have a Living Will law in Massachusetts, meaning your physician will not act on the wishes you express in your Living Will. However, your doctor is required to take direction from your health care agent named in your Health Care Proxy once it is determined that you are not able to make decisions for yourself. Even though a Health Care Proxy is sufficient for this type of situation, many people still choose to sign a Living Will because they want to give their health care agent and other family members’ guidance. This is a good idea as being faced with this decision is difficult for families and is especially hard on those who have no idea what the ill person would have wanted. Documenting your wishes in a Living Will can ease the burden on your health care agent.
5. A DNR is not a Living Will. Sometimes clients will tell me that want to sign a DNR. What they really mean is they want to create a Living Will. In Massachusetts a DNR, or Comfort Care/Do Not Resuscitate Order, refers to a Department of Public Health form that is signed by the patient (or health care agent) and the patient’s physician or nurse practitioner. A DNR is appropriate only for individuals who have a terminal illness and is intended to serve as instruction to emergency medical personnel. It is typically posted in a home, worn as a bracelet insert in a hospital, or is on file with the patient’s records at a nursing home.

For families facing a loved one’s terminal illness or condition it is difficult enough without having the added emotional distress of not being able to honor the patient’s wishes or not knowing what those wishes were. By designating a Health Care Proxy and signing a Living Will, you can ease the burden on your loved ones.

Attorney Suzanne Sayward is a partner with the Dedham law firm Samuel, Sayward & Baler LLC and served as the 2009 president of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, visit www.ssbllc.com