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Massachusetts Health Care Proxy: Form, Witnesses and How It Works
Massachusetts uses a health care proxy, signed in front of two adult witnesses, to name the person who makes medical decisions if your parent can't. Here is what M.G.L. chapter 201D requires.
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What to know
- A Massachusetts health care proxy must be in writing and signed by your parent, or at their direction, in the presence of two adult witnesses; chapter 201D doesn't require a notary (§ 2).
- The person named as health care agent can't be one of the witnesses.
- The agent's authority begins only after the attending physician determines, in writing, that your parent lacks capacity to make or communicate health care decisions (§ 6).
- Chapter 201D doesn't list which relatives decide if there's no proxy, and a search of the Massachusetts General Laws for "living will" returns no results.
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A health care proxy in Massachusetts is "a document delegating to an agent the authority to make health care decisions, executed in accordance with the requirements of this chapter." Under M.G.L. c. 201D, § 2, "Every competent adult shall have the right to appoint a health care agent by executing a health care proxy," signed in the presence of two adult witnesses.
What is a health care proxy in Massachusetts?
It's the document your parent uses to name a health care agent, an adult who can make health care decisions for them. Under § 5, the agent can make "any and all health care decisions on the principal's behalf that the principal could make, including decisions about life-sustaining treatment," subject to any express limits your parent writes in.
The agent decides according to their assessment of your parent's wishes, "including the principal's religious and moral beliefs," or, if those wishes are unknown, your parent's best interests. The agent can receive your parent's medical information, including confidential records. A financial power of attorney is separate; see our Massachusetts power of attorney guide. For the general picture, see power of attorney vs. advance directive.
Does Massachusetts have a living will?
Chapter 201D provides for a health care proxy, not a living will. A phrase search of the Massachusetts General Laws on the legislature's website for "living will" returned "No results were found."
Your parent's wishes still matter under the proxy. The agent decides by their assessment of those wishes, so writing them down, or telling the agent, gives the agent something to go on. Chapter 201D adds that not naming an agent, or not giving the agent specific instructions, "shall create no presumptions regarding the adult's wishes about health care."
How do you sign a Massachusetts health care proxy?
Your parent signs it, or has it signed at their direction, in front of two adult witnesses who aren't the agent; § 2 doesn't require a notary.
| Requirement | What chapter 201D says |
|---|---|
| Writing and signature | In writing, signed by your parent or at their direction |
| Two witnesses | Two adults who sign as witnesses to your parent's signature |
| Witness statement | The witnesses affirm in writing that your parent appeared to be at least 18, of sound mind and under no constraint or undue influence |
| Who can't witness | The person named as health care agent |
| Notary | Not required by § 2 |
Under § 2, every adult is presumed competent and every health care proxy "shall be presumed to be properly executed unless a court determines otherwise." Your parent can also name an alternate agent, who serves if the first agent isn't "available, willing or competent to serve."
Who can't be the health care agent?
A minor can't be the agent, and under § 3 an operator, administrator or employee of a facility can't be appointed by someone who, when signing the proxy, is a patient or resident there or has applied for admission, "unless said operator, administrator or employee is related to the principal by blood, marriage or adoption."
A physician can be named as agent, but under § 6, "A physician who has been appointed as a patient's agent shall not make the determination of the patient's capacity to make health care decisions." Chapter 201D doesn't bar family members from serving as agent.
When does the agent start making decisions?
Under § 6, the agent's authority "shall begin after a determination is made" that your parent "lacks the capacity to make or to communicate health care decisions." The attending physician makes that determination in writing, including the cause, nature, extent and probable duration of the incapacity, and it goes in the medical record. The agent is told, and so is your parent if there's any indication they can understand the notice.
Your parent keeps a voice. If they object to an agent's decision, "the principal's decisions shall prevail unless the principal is determined to lack capacity to make health care decisions by court order." If your parent regains capacity, the agent's authority stops, and starts again if capacity is lost again.
Where do you get a Massachusetts health care proxy form?
Chapter 201D doesn't print a form, so any form your parent uses must do the four things § 4 lists:
- identify your parent and the health care agent;
- show that your parent intends the agent to have authority to make health care decisions for them;
- describe any limits on that authority;
- indicate that the agent's authority starts if it's determined under § 6 that your parent lacks capacity to make health care decisions.
The state doesn't publish its own form in the statute, but the Massachusetts Trial Court Law Libraries' page on health care proxies and living wills links sample health care proxy forms published by outside organizations, along with the law itself. Any form your parent uses should cover the four points above.
Together with the signing rules in § 2, those are the chapter's requirements for the document. Once a physician receives a health care proxy, § 5 says the physician "shall arrange for the proxy or a copy thereof to be inserted in the principal's medical record," so giving copies to your parent's doctors matters.
What happens if your parent has no health care proxy?
Chapter 201D doesn't contain a ranked list of relatives who can decide. Section 16 says only that when no proxy has been signed, nothing in the chapter stops a provider "from relying upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law."
Otherwise, a court can appoint a guardian under chapter 190B. If a proxy exists, the guardian can't revoke it without court authorization, and "a health-care decision of the agent takes precedence over that of a guardian" unless a court orders otherwise. See our Massachusetts guardianship guide.
How do you revoke a Massachusetts health care proxy?
Under § 7, your parent can revoke it "by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy." Your parent is presumed to have the capacity to revoke unless a court has determined otherwise.
A proxy is also revoked automatically when your parent signs a new health care proxy, or upon "the divorce or legal separation of the principal and his spouse, where the spouse is the principal's agent."
What about MOLST and POLST?
A MOLST, or medical order for life-sustaining treatment, is a medical order rather than a health care proxy. Massachusetts law directs the Department of Aging and Independence to run a statewide program for portable orders for life-sustaining treatment, and says "The POLST program shall transition from the use of medical orders for life-sustaining treatment, also known as MOLST, to the national POLST model" (c. 19A, § 44). The program covers POLST forms and health care proxy forms, and the law lets the department build an electronic system, ePOLST, that clinicians can query. Your parent's clinician can explain which form applies now.
Frequently asked questions
Does a health care proxy need to be notarized in Massachusetts?
No notary requirement appears in M.G.L. c. 201D. Section 2 requires a writing signed by your parent, or at their direction, in the presence of two adult witnesses, who affirm in writing that your parent appeared to be at least 18, of sound mind and under no constraint or undue influence.
Can a family member witness a Massachusetts health care proxy?
Chapter 201D bars only one person from witnessing: the person named as health care agent. It doesn't bar other relatives. Both witnesses must be adults, sign as witnesses and affirm in writing that your parent appeared to be at least 18, of sound mind and under no constraint or undue influence.
Where can I get a Massachusetts health care proxy form?
Chapter 201D doesn't print one, but the Massachusetts Trial Court Law Libraries link sample forms from outside organizations. Any form must say who your parent and the agent are, that the agent can make health care decisions, any limits, and that authority starts when a physician finds your parent lacks capacity. Two adults must witness it.
Who makes medical decisions in Massachusetts if there's no health care proxy?
Chapter 201D doesn't list a default order of relatives. It says providers may rely on the informed consent of responsible parties to the extent permitted by law. A court can also appoint a guardian under chapter 190B. Naming a health care agent lets your parent choose instead.
Is a health care proxy from another state valid in Massachusetts?
Under § 11, chapter 201D doesn't limit the enforceability of a health care proxy or similar instrument executed in another state in compliance with that state's law. A provider isn't required to enforce one where that would conflict with the conscience provisions in §§ 14 and 15, which come with transfer duties.
Can my parent change their mind after signing?
Yes. Your parent can revoke a health care proxy by telling the agent or a health care provider, orally or in writing, or by any other act showing a specific intent to revoke. Signing a new proxy revokes the old one, and divorce or legal separation revokes a spouse's appointment as agent.
Getting started
A health care proxy only helps if it's signed while your parent can sign it, with two adult witnesses who aren't the agent, and if a copy reaches the doctors. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- M.G.L. chapter 201D, Health care proxies: definitions (§ 1), signing and witnesses (§ 2), who can't serve (§ 3), contents (§ 4), the agent's authority (§ 5), when it starts (§ 6), revocation (§ 7), out-of-state proxies (§ 11) and no proxy (§ 16).
- M.G.L. c. 190B, § 5-309: a guardian and an existing health care proxy.
- M.G.L. c. 19A, § 44: the POLST program and the move from MOLST.
- Massachusetts Trial Court Law Libraries, Massachusetts law about health care proxies and living wills: sample forms and sources.
- Massachusetts General Laws search for "living will": no results.
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