Default Health-Care Surrogate Priority in Massachusetts
At a glance
| When the default route opens | Agent's proxy authority starts on written attending-physician incapacity finding; without a proxy, § 16 addresses incompetent or incapacitated patients (§§ 201D:6, 201D:16). |
|---|---|
| Care or setting covered | Proxy agent may make health-care decisions within proxy; § 16 permits provider reliance on responsible-party consent without naming a facility class (§§ 201D:5, 201D:16). |
| Guardian or appointed agent | Effective proxy agent outranks other people, including guardian, unless proxy or court order says otherwise (§§ 201D:5, 190B:5-309(e)). |
| Family and partner order | No spouse-to-child statutory rank in § 201D:16; it speaks of informed consent from responsible parties to the extent permitted by law. |
| Friend or other nonfamily person | No separate friend class in § 201D:16; a responsible party's consent may be relied on only to the extent permitted by law. |
| Decision within one class | Section 201D:16 gives no majority or unanimity rule for multiple responsible parties. |
| Who is available and eligible | A named alternate agent may act if primary is unavailable, unwilling, incompetent, or disqualified; § 16 gives no comparable family search test (§§ 201D:2, 201D:16). |
| Decisions limited or excluded | Proxy agent stays within proxy; patient objection prevails absent court incapacity order; guardian cannot admit to mental-health facility under guardianship chapter (§§ 201D:5, 201D:6, 190B:5-309(f)). |
| No surrogate or disputed authority | Court may appoint a guardian after required findings, or a limited temporary guardian to avert immediate substantial harm while petition is pending (§§ 190B:5-306, 190B:5-308). |
Requirements one by one
When the default route opens
Under ch. 201D, § 6, an appointed agent gains authority after an attending physician records a finding that the principal cannot make or communicate health-care decisions. The statute expressly limits that finding's function to activating a proxy. For a patient without an executed proxy, ch. 201D, § 16 addresses consent for an incompetent or incapacitated patient without supplying the same agent-activation procedure.
Guardian or appointed agent
Chapter 201D, § 5 gives an effective proxy agent the same priority over others that the principal would have, subject to the proxy or a specific court order. Chapter 190B, § 5-309(e) says the agent's health-care decision normally takes precedence over a guardian's. A guardian has health and welfare authority under § 5-309(a), within the powers the court grants under § 5-306(c).
Family and partner order
Chapter 201D, § 16 says a provider is not precluded from relying on informed consent of "responsible parties" when no proxy was executed, but only "to the extent permitted by law." It does not identify a spouse, child, parent, or sibling as an automatic first choice. The guardianship chapter offers a court-appointed route, rather than converting relationship alone into the guardian's authority.
Friend or other nonfamily person
The same § 16 neither names a separate close-friend class nor prescribes a relationship declaration. Its phrase "responsible parties" should not be read as a fixed family-only list or a free-standing grant of authority beyond what other law permits.
No surrogate or disputed authority
Chapter 190B, § 5-306(b) lets the court appoint a guardian after hearing and required findings, including incapacity and the lack of a sufficient less restrictive option. While a guardianship petition is pending, § 5-308(a) allows a temporary guardian with only court-granted powers when waiting would likely cause immediate and substantial harm and no other person appears authorized.
What trips people up
Chapter 201D, § 16 preserves provider reliance on responsible-party consent but does not resolve who counts as responsible in a particular dispute. Its last sentence also says that failure to appoint an agent creates no presumption about a patient's care wishes. A proxy agent's decision may be overridden by the principal's objection under § 6 unless a court has determined that the principal lacks decision-making capacity.
The guardian's health authority has limits of its own: ch. 190B, § 5-309(f) does not allow a guardian to admit or commit the person to a mental-health facility under that chapter.
H.4329 proposes a new surrogate-selection process; it has not displaced current § 16.
Common questions
Does the oldest child automatically decide? Chapter 201D, § 16 supplies no child ranking or same-class voting formula. A provider's possible reliance on a responsible party remains subject to other law.
Can a named alternate agent step in? Yes, when ch. 201D, § 2's availability, willingness, competence, or disqualification conditions are met.
Can a hospital choose a friend simply because no proxy exists? Section 16 does not name a friend class or provide an automatic appointment process; it preserves reliance on responsible-party consent only to the extent permitted by law.
Statutes and sources
- Mass. Gen. Laws ch. 201D, §§ 2, 5, 6, 16, and ch. 190B, §§ 5-306, 5-308, 5-309. Verbatim official text, source links, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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