How do I create an advance healthcare directive in Massachusetts?
1. Types Recognized
Massachusetts recognizes: (a) Health Care Proxy (M.G.L. c. 201D), (b) MOLST (Medical Orders for Life-Sustaining Treatment), (c) Comfort Care/DNR Order Verification (CC/DNR-OV), and (d) personal directives/living wills are NOT statutorily binding but admissible as evidence of patient wishes (Brophy v. New England Sinai Hospital, 398 Mass. 417 (1986)).
2. Statutory Form
M.G.L. c. 201D § 2 sets requirements but no mandatory form. The Massachusetts Medical Society and Massachusetts Health Decisions distribute widely-accepted templates.
3. Execution Formalities
Principal must be 18+ and of sound mind. The Proxy must be signed by the principal in the presence of TWO adult witnesses who also sign (M.G.L. c. 201D § 2). The healthcare agent CANNOT serve as witness. NO notary required.
4. Healthcare Agent Authority
Under M.G.L. c. 201D § 5, the agent has authority to make any and all healthcare decisions the principal could make, subject to limitations stated in the proxy. The principal's prior expressed wishes are binding on the agent. Authority becomes effective when the attending physician determines in writing that the principal lacks capacity (§ 6).
5. Pregnancy Clauses
Massachusetts has NO statutory pregnancy exclusion in the Health Care Proxy law.
6. Reciprocity
M.G.L. c. 201D § 11 honors proxies validly executed in other jurisdictions.
7. MOLST
Massachusetts MOLST is signed by physician/NP/PA, portable across care settings, used for seriously ill patients (Massachusetts Department of Public Health guidance under 105 CMR 200.000).
8. Revocation
Under M.G.L. c. 201D § 7, the proxy may be revoked by: notifying the agent or healthcare provider orally or in writing, executing a subsequent proxy, divorce/legal separation (which revokes spouse-agent), or any act evidencing intent to revoke.
9. Default Surrogate
Massachusetts has NO statutory surrogate hierarchy. Without a Health Care Proxy, decisions for an incapacitated patient generally require court-appointed guardianship under M.G.L. c. 190B § 5-306 (Probate Court). Hospitals follow internal ethics-committee protocols for treatment decisions.
This is legal information, not legal advice.
- No surrogate statute — proxy is essential to avoid guardianship
- Living will not binding — coordinating evidence with proxy
- Disputes leading to Probate Court guardianship petitions
- M.G.L. c. 201D (Health Care Proxy)
- Brophy v. New England Sinai Hospital, 398 Mass. 417 (1986)
- M.G.L. c. 190B § 5-306 (guardianship)
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.