Beyond The Will, Client Compass

Planning for Incapacity or Disability

October 2, 2020


My colleague, Hether Cahill, previously addressed the relationship between a guardianship and health care proxy and a conservatorship and durable power of attorney.  The purpose of this blog is to further explore the use of health care proxies and durable powers of attorney when planning for incapacity or disability.

Massachusetts General Laws ch. 201D, § 5 governs the authority of a health care proxy in Massachusetts.  A health care proxy, once executed, enables an agent to make health care decisions on behalf of the principal in the event of the principal’s incapacity or disability.  Specifically, the statute provides that “[a]fter consultation with health care providers, and after full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatments, and their side effects, the agent shall make health care decisions: (i) in accordance with the agent’s assessment of the principal’s wishes, including the principal’s religious and moral believes, or (ii) if the principal’s wishes are unknown, in accordance with the agent’s assessment of the principal’s best interests.”

Further, notwithstanding any law to the contrary, an agent has the right to receive any and all medical information necessary in order to make an informed decision with respect to the principal’s health care.  This includes confidential medical information that might otherwise be protected by HIPAA regulations.  Note that frequently clients execute both a health care proxy and HIPAA authorization at the same time.  The HIPAA authorization allows for the release of protected medical information to the individuals designated within the document.

In order for a health care proxy to be considered valid, a competent adult must sign the document in the presence of two other adult witnesses.  The witnesses must affirm in writing that the principal appeared to be at least 18 years of age, of sound mind and under no constraint or undue influence.  A health care proxy may appoint both an agent and an alternate agent who will act in the event that the agent is unavailable, unwilling or not competent to serve or if they are not expected to become available, willing or competent in the near future.

When appointing an agent, it is important for the principal to select someone whom they trust and who is willing to act in their best interest and in accordance with the principal’s wishes.  Note that under the statute a person who is an operator, administrator or employee of a facility where the principal is a patient or resident may not be appointed as health care agent under such principal’s health care proxy.

A durable power of attorney is a legal document that appoints an agent (called an “attorney-in-fact”) to handle financial and legal affairs on a principal’s behalf in the event of incapacity or disability.  Such responsibilities may include managing investments, paying bills, signing checks, making deposits, and paying taxes.  A durable power of attorney may appoint more than one attorney-in-fact however, the document must specify whether each agent may act alone or whether they are required to act jointly.  Alternate attorneys-in-fact may also be named.

Technically, a durable power of attorney goes into effect when signed by a competent adult and remains in effect when the principal becomes disabled or incapacitated. The Massachusetts Uniform Probate Code sets forth specific language that must be included in a power of attorney in order for it to be deemed durable (M.G.L. ch. 190B, § 5-501). If a power of attorney is not durable, it will be automatically revoked when the principal becomes disabled or incapacitated.

There is no statutory requirement in Massachusetts for a durable power of attorney to be witnessed.  However, it is best practice to have the document witnessed by two other adults and for the document to be notarized by a Notary Public.

Again, when appointing an attorney-in-fact under a durable power of attorney, it is important for the principal to select an individual who they trust to handle financial and legal affairs.

There are a number of factors to consider when naming agents under a health care proxy and durable power of attorney.  It is important to engage experienced legal counsel with whom you can discuss these factors and who can prepare these documents on your behalf.

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