Some of our most important health care decisions tend to come toward the end of peoples' lives, when they may be unable to make informed decisions. The durable power of attorney, therefore, allows individuals to appoint someone else to make these decisions on their behalf. Massachusetts' durable power of attorney laws require that the appointed individual be a legal adult, have the capacity to understand this responsibility, and that the document be signed in the presense of at least two adults.
The following chart lists the main elements of Massachusetts' durable power of attorney laws. See Power of Attorney for Healthcare and Living Wills for more details.
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| Code Section | Ch. 201D §1, et seq. Health Care Proxies |
| Specific Powers, Life-Prolonging Acts | Any and all health care decisions on principal's behalf that principal could make including decisions about life-sustaining treatment (which do not include those procedures to provide comfort care or pain alleviation), subject to any express limitations of health care proxy's authority (proxy has priority over other persons, including one with durable power of attorney unless limited by principal or court order) |
| Legal Requirements for Durable Power of Attorney | (1) Competent adult; (2) in writing; (3) signed; (4) in presence and subscribed by 2 adult witnesses, that the principal appeared to be 18, of sound mind and under no constraint or undue influence; (5) Health care proxy must contain identities of principal and health care agent and indicate principal intends agent to have authority to make health care decisions on his behalf and describe any limitations and indicate agent's authority effective if it is determined that principal lacks decisional capacity |
| Revocation of Durable Power of Attorney | Revocable by (1) notification of agent or health care provider orally or in writing or by any other act evidencing specific intent to revoke the proxy; (2) execution of subsequent health care proxy; (3) divorce or legal separation where spouse was principal's agent under health care proxy |
| Validity from State-to-State | Effective if executed in another state or jurisdiction if in compliance with laws of that state or jurisdiction provided §14 and §15 of Chap. 201D are not violated (re: refusal to honor proxy) |
| If Physician Unwilling to Follow Durable Power of Attorney | Physician should arrange for transfer of patient to equivalent facility "reasonably accessible" to patient's family; if unable to do so, physician shall seek judicial relief or honor agent's decision |
| Immunity for Attending Physician | No civil, criminal, or professional liability for carrying out in good faith a health care decision by an agent pursuant to a health care proxy |
Note: State laws are constantly changing -- contact a Massachusetts estate planning attorney or conduct your own legal research to verify the state law(s) you are researching.
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