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This information is to be given to each patient upon admission in accordance with the Omnibus Budget Reconciliation Act of 1990 (OBRA). This guide is also available in Spanish.
All competent adult patients at McLean Hospital have the constitutional right to make their own informed decisions about whether to accept or refuse medical and psychiatric treatment, except in an emergency or pursuant to a court order. Under Chapter 201D of the Massachusetts General Laws, enacted December 18, 1990, competent adults may execute a health care proxy designating an agent to participate in and make health care decisions for them when they lose their capacity to make such decisions for themselves.
The information in this guide is offered when considering a health care proxy. However, because each person’s situation is different, detailed legal advice from a private attorney may be desirable to tailor the document to one’s individual needs.
A health care proxy is a written document by which a competent adult (the “principal”) may appoint an individual (the “agent”) to make health care decisions if the principal is unable to do so.
Any individual 18 years or older who is considered competent to handle his/her own affairs may execute a health care proxy. The law presumes competency of the principal and two witnesses must affirm the age, mental soundness, and voluntariness of the principal signing the health care proxy.
After a physician has determined the principal to be incompetent and has notified the principal and the agent, then the authorities granted in the health care proxy can be exercised by the agent. A copy of the determination of incapacity and the health care proxy will be placed in the patient’s medical record.
A grant of broad authority over all health care issues can be given, or the principal can limit the range of the agent’s authority. For psychiatric purposes, it is recommended that the principal establish clear guidelines within the health care proxy to instruct the agent concerning the following: psychiatric care and treatment, including admission to a psychiatric hospital; the use of psychotropic medications and, in particular, whether antipsychotics may be used; the possible use of electroconvulsive therapy (ECT); and the possible participation in research.
The health care proxy is a directive to the agent stating the principal’s wishes regarding types of medical treatment and it guides the agent when making decisions. The agent is to consult with health care providers; consider acceptable medical alternatives regarding diagnosis, prognosis, treatment, and side effects; and make decisions based on the principal’s wishes. If the principal’s wishes are not known, the agent is to assess what is in the principal’s best interests and consistent with responsible medical practice. The agent is empowered to receive the same information a competent patient would receive to assist in making informed health care decisions on behalf of the principal, including confidential medical information.
The agent’s authority ends as soon as the principal’s competence to make informed health care decisions is restored, as determined by the physician, or when the principal revokes the health care proxy.
The health care proxy can be revoked by executing a new document; by the divorce/legal separation of the principal and his/her spouse when the spouse had been named agent; or by revoking the document orally, in writing, or by an act that could be reasonably interpreted to indicate revocation.
No. The execution of a health care proxy cannot be required as a condition to being provided health care or insurance.
Hospitals and physicians must honor an agent’s decision about treatment; however, they are not obligated to honor an agent’s decision contrary to their ethical or moral views or outside the accepted standards of medical practice. Agents may not authorize or approve mercy killing, and physicians cannot be prevented from providing comfort care. Health care decisions by an agent must be consistent with any limitations in the health care proxy. Disputes regarding treatment may need to be resolved by court proceedings.
The durable power of attorney is regularly used for financial matters; the health care proxy for health matters.
A durable power of attorney is intended to deal with financial or other non-health matters and should be considered whenever continued financial matters may need to be dealt with after the principal becomes unable to make his/her own decisions.
Included within the authority otherwise granted herein to my health care agent to make any and all health care decisions for me are the following powers:
If my health care proxy, my appointment of my health care agent, and/or the authority granted to said agent (a) is revoked by me, (b) is determined to be legally insufficient by a probate court, or (c) is otherwise subjected to judicial review such that a guardian or further grant of authority is required, I wish to inform the court as follows:
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