Default Health-Care Surrogate Priority in Massachusetts

Short answer Massachusetts chapter 201D does not give relatives an automatic ranked decision ladder. When no health-care proxy was executed, § 16 leaves room for a provider to rely on informed consent from responsible parties to the extent permitted by law, without naming family classes or a vote. A court-appointed guardian can make health decisions within the court's limits; an effective proxy agent ordinarily takes precedence over that guardian.
State
Massachusetts
Statute checked
October 8, 2026
Sources
7 statutes
Pending legislation could change this.
MA H.4329 (2025–2026) (Referred to House Ways and Means December 4, 2025; official bill page showed no later action on October 8, 2026.): Would add a surrogate-decision chapter directing physicians to consider spouses, adult children, parents, adult siblings, and others in that order, then select a qualified person using statutory criteria. track it Status checked October 8, 2026.

At a glance

When the default route opensAgent'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 coveredProxy 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 agentEffective proxy agent outranks other people, including guardian, unless proxy or court order says otherwise (§§ 201D:5, 190B:5-309(e)).
Family and partner orderNo 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 personNo 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 classSection 201D:16 gives no majority or unanimity rule for multiple responsible parties.
Who is available and eligibleA 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 excludedProxy 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 authorityCourt 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.

This page summarizes default health-care decision rules, not advice about an individual patient. Capacity, existing directives, the care setting, and urgent treatment can change who may decide. Check current official law and obtain professional advice for a specific decision.

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