Information on Advance Directives
Helpful Information for Patients, Families, and Friends
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.
Questions and Answers
What is a health care proxy?
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.
Who can execute a health care proxy?
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.
When does the health care proxy become effective?
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.
What is the agent’s authority?
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.
How will the agent make decisions?
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.
When does the agent’s authority end?
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.
How can a health care proxy be revoked?
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.
Can a hospital require patients to execute a health care proxy?
No. The execution of a health care proxy cannot be required as a condition to being provided health care or insurance.
What would happen if the hospital and agent disagree about treatment?
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.
What is the difference between a durable power of attorney and a health care proxy?
The durable power of attorney is regularly used for financial matters; the health care proxy for health matters.
When should a durable power of attorney be considered?
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.
Model Psychiatric Provisions for a Health Care Proxy
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:
- To make any and all decisions regarding admission to, retention in, and/or discharge from a psychiatric facility;
- To make any and all decisions regarding usual and customary medical and psychiatric treatment, including psychotropic medications;
- To make any and all decisions regarding treatment with antipsychotic medication;
- To make any and all decisions regarding treatment with electroconvulsive therapy (ECT); and
- To make any and all decisions regarding participation in clinical research, including the use of investigational medications.
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:
- That I nominate the person identified herein as my health care agent to serve as my guardian should appointment of a guardian become necessary. In the event that my appointed health care agent is not available, willing, or competent to serve or is otherwise disqualified, I nominate the person identified herein as my alternate health care agent to serve as my guardian.
- That I request the authorities granted herein to my health care agent be similarly granted to him/her by said court or to my alternate health care agent should he/she be so appointed.
- That I hold no religious convictions that might limit the authority I have granted or wish to have granted to my health care agent, alternate health care agent, or guardian.
- That I wish to minimize in any way the possible impact or burdens on my family in terms of money, time, or emotional stress arising in this context.
- That I hold no preferences for, or prejudices against, the use of specific treatments or medications, including antipsychotic medications, which would limit the authority that I have granted or wish to have granted to my health care agent, alternate health care agent, or guardian.
- That I direct my health care agent, alternate health care agent, or guardian to consider my prognosis with and/or without treatment by antipsychotic medications, side effects, risks, benefits, and alternative treatments as the basis for the exercise of their authority.
- That the authority I granted to my health care agent and alternative health care agent, and that which I would have the court grant to a guardian appointed for me, be sufficient to fully constitute my substituted judgment, as if otherwise established in a verdict of a court of competent jurisdiction.