MASSACHUSETTS HEALTH CARE PROXY & DURABLE POWER OF ATTORNEY FOR HEALTH CARE
(“Healthcare Power of Attorney”)
[// GUIDANCE: This template is drafted to comply with Massachusetts General Laws ch. 201D (“Health Care Proxy Law”), relevant federal HIPAA regulations (45 C.F.R. Parts 160 & 164), and the instructions provided. Bracketed items must be customized. Remove guidance comments in final execution copy.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
- Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block
- Notary Acknowledgment (Optional)
1. DOCUMENT HEADER
1.1 Title; Parties.
This Massachusetts Health Care Proxy & Durable Power of Attorney for Health Care (this “Proxy”) is executed by [PRINCIPAL NAME], residing at [ADDRESS] (“Principal”), in favor of [PRIMARY AGENT NAME], residing at [ADDRESS] (“Agent”), with [ALTERNATE AGENT NAME] as alternate (“Alternate Agent”).
1.2 Effective Date.
This Proxy becomes effective on the date the Principal lacks capacity to make or communicate health-care decisions, as determined under Section 3.3.
1.3 Governing Law.
This Proxy shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, including but not limited to M.G.L. ch. 201D (the “Act”).
1.4 Consideration.
Mutual promises herein constitute sufficient consideration.
2. DEFINITIONS
“Act” – Massachusetts General Laws chapter 201D, § 1 et seq.
“Capacity” – The ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision, as determined by a licensed physician.
“End-of-Life Care” – Medical care provided when death is imminent or the Principal is in a persistent vegetative state or has an incurable or irreversible condition.
“Good Faith” – Honesty in fact and the reasonable belief that the action is lawful and in the best interests of the Principal.
“Health-Care Decision” – Any consent, refusal, or withdrawal of consent to treatment, services, procedures, or nutrition/hydration necessary to diagnose or treat any physical or mental condition.
“HIPAA” – The Health Insurance Portability and Accountability Act of 1996 and its implementing regulations at 45 C.F.R. Parts 160 & 164.
“PHI” – Protected Health Information as defined by HIPAA.
[// GUIDANCE: Add, modify, or delete definitions to align with client intent.]
3. OPERATIVE PROVISIONS
3.1 Appointment of Agent.
The Principal hereby designates the Agent to make Health-Care Decisions on the Principal’s behalf whenever the Principal lacks Capacity.
3.2 Appointment of Alternate Agent.
If the Agent is unable, unwilling, or disqualified to act, the Alternate Agent shall serve with identical authority.
3.3 Determination of Incapacity.
Capacity shall be deemed lacking upon written determination by the Principal’s attending physician and is effective upon delivery of such writing to the Agent. The Agent may rely on such determination without independent investigation.
3.4 Scope of Authority.
Subject to Section 3.5, the Agent may:
a. Consent to, refuse, or withdraw any medical treatment, diagnostic procedure, medication, or life-sustaining measure;
b. Access, receive, and disclose PHI;
c. Hire and fire health-care providers;
d. Authorize admission to or discharge from any health-care facility;
e. Execute waivers or releases of liability;
f. Authorize autopsy and the disposition of remains; and
g. Take any other action permitted under the Act.
3.5 End-of-Life Provisions.
3.5.1 It is the Principal’s express wish that [DESCRIBE PREFERENCE, e.g., “life-sustaining treatment be withheld if I am in a persistent vegetative state”].
3.5.2 Artificial nutrition and hydration: [SELECT ONE: “may be withheld” / “must be provided” / “Agent’s discretion”].
3.5.3 Palliative care and pain management should be prioritized to ensure comfort even if such measures have the unintended effect of hastening death.
3.6 HIPAA Authorization.
Pursuant to 45 C.F.R. § 164.502(g), the Agent is a “personal representative” of the Principal with respect to PHI and is authorized to obtain, use, and disclose such information to the extent necessary to carry out the purposes of this Proxy. This authorization is effective immediately and survives incapacity and death for the period permitted by applicable law.
3.7 Reliance by Third Parties.
Any person, institution, or entity that in Good Faith relies on the Agent’s representations shall be indemnified and held harmless pursuant to Section 7.1 and may rely without investigation on photocopies or electronic copies of this Proxy.
3.8 Revocation.
The Principal may revoke this Proxy at any time by:
a. A signed writing;
b. Physical destruction of the original Proxy; or
c. Express oral statement in the presence of a witness.
4. REPRESENTATIONS & WARRANTIES
4.1 Principal.
a. The Principal is at least eighteen (18) years of age, of sound mind, and executing this Proxy voluntarily.
b. No undue influence or duress has been exerted.
4.2 Agent & Alternate Agent.
Each Agent represents and warrants:
a. Being at least eighteen (18) years of age and not currently serving as the Principal’s health-care provider.
b. Willingness and ability to serve;
c. Intention to act in Good Faith and consistent with the Principal’s known wishes.
4.3 Survival.
The warranties in this Article 4 survive the Principal’s incapacity and remain enforceable during any exercise of authority hereunder.
5. COVENANTS & RESTRICTIONS
5.1 Agent Duties.
a. Act in Good Faith, consistent with Principal’s expressed wishes or, if unknown, Principal’s best interests.
b. Consult with health-care professionals before making decisions.
c. Maintain contemporaneous records of significant decisions made under this Proxy.
d. Provide prompt notice of decisions to interested family members identified by the Principal.
5.2 Limitations.
The Agent shall not:
a. Authorize psychosurgery, sterilization, or commitment to a mental health facility unless expressly permitted by Massachusetts law and Section 3.4;
b. Delegate authority except to the Alternate Agent under Section 3.2.
6. DEFAULT & REMEDIES
6.1 Events of Default.
An “Agent Default” occurs upon:
a. Breach of any covenant in Section 5.1;
b. Failure to act when action is required within a reasonable time;
c. Conduct inconsistent with Good Faith.
6.2 Cure.
Upon written notice by any interested person, the Agent has forty-eight (48) hours to cure, failing which the Alternate Agent automatically assumes authority.
6.3 Remedies.
a. Injunctive relief pursuant to Article 8 to enjoin unauthorized acts;
b. Removal and replacement under Section 6.2;
c. Recovery of actual damages (excluding consequential, special, or punitive damages per Section 7.2).
6.4 Attorneys’ Fees.
A prevailing party in an action to enforce this Proxy is entitled to reasonable attorneys’ fees and costs.
7. RISK ALLOCATION
7.1 Indemnification.
The Principal shall indemnify and hold harmless the Agent, Alternate Agent, and any third party acting on instructions of the Agent (collectively, “Indemnitees”) from any liability, claim, or expense incurred as a result of actions taken in Good Faith under this Proxy, except liability arising from gross negligence or willful misconduct.
7.2 Limitation of Liability.
No Indemnitee shall be liable for any consequential, special, or punitive damages. Liability is capped to direct damages proven to arise from gross negligence or willful misconduct.
7.3 Insurance.
The Agent is encouraged, but not required, to obtain insurance protection for acts taken under this Proxy; premiums may be reimbursed from the Principal’s assets.
7.4 Force Majeure.
No party shall be liable for failure to perform obligations if performance is rendered impossible by unforeseen events beyond reasonable control, including but not limited to natural disasters, war, or pandemic.
8. DISPUTE RESOLUTION
8.1 Governing Law.
Massachusetts law applies without regard to conflict-of-law principles.
8.2 Forum Selection.
Any proceeding relating to this Proxy shall be brought exclusively in the Probate and Family Court Department of the Trial Court of Massachusetts sitting in [COUNTY] (the “Designated Court”).
8.3 Arbitration.
Arbitration is expressly disclaimed and shall not apply.
8.4 Jury Waiver.
[// GUIDANCE: Jury waiver intentionally omitted per metadata.]
8.5 Injunctive Relief.
Nothing herein limits the right of any interested person to seek temporary, preliminary, or permanent injunctive relief from the Designated Court to enforce Health-Care Decisions consistent with this Proxy.
9. GENERAL PROVISIONS
9.1 Amendments.
This Proxy may be amended only by a duly executed writing by the Principal.
9.2 Assignment.
Authority hereunder is personal to the Agent and Alternate Agent and may not be assigned.
9.3 Successors & Assigns.
This Proxy is binding upon and inures to the benefit of the Principal’s heirs, executors, administrators, and legal representatives.
9.4 Severability.
If any provision is held invalid, the remainder shall be enforced to the maximum extent permissible.
9.5 Integration.
This Proxy constitutes the entire health-care power of attorney of the Principal and supersedes all prior inconsistent writings.
9.6 Counterparts; Electronic Signatures.
This Proxy may be executed in counterparts, each of which is deemed an original. Electronic signatures shall be deemed originals under the Massachusetts Uniform Electronic Transactions Act.
10. EXECUTION BLOCK
Executed as a sealed instrument this __ day of __, 20__ (“Execution Date”).
PRINCIPAL
[PRINCIPAL NAME], Principal
STATEMENT OF AGENT
I accept appointment as Agent and agree to act in Good Faith under this Proxy.
[PRIMARY AGENT NAME], Agent
STATEMENT OF ALTERNATE AGENT
I accept appointment as Alternate Agent and agree to act in Good Faith under this Proxy.
[ALTERNATE AGENT NAME], Alternate Agent
WITNESS ATTESTATION
We, the undersigned witnesses, affirm that the Principal is personally known to us, appears to be of sound mind, and executed this Proxy voluntarily. We are at least eighteen (18) years old, not named as Agent or Alternate Agent, and not directly involved in the Principal’s health-care.
-
_____ Date: ____
[WITNESS #1 PRINT NAME & ADDRESS] -
_____ Date: ____
[WITNESS #2 PRINT NAME & ADDRESS]
11. NOTARY ACKNOWLEDGMENT (OPTIONAL)
State of Massachusetts )
County of ____ )
On this ___ day of ____, 20__, before me, the undersigned notary public, personally appeared [PRINCIPAL NAME], proved to me through satisfactory evidence of identification to be the person whose name is signed on this document, and acknowledged to me that he/she executed it voluntarily for its stated purpose.
Notary Public
My commission expires: ____
[// GUIDANCE:
1. Ensure all bracketed fields are completed.
2. Review End-of-Life preferences with client for clarity and legality.
3. Provide copies to Principal’s physicians and health-care facilities.
4. Retain original in a readily accessible location.
5. Consider recording this Proxy with the electronic Massachusetts Health Care Proxy registry, if available.]