The Difference Between Guardians and Health Care Agents

A health care proxy is a document which allows an individual to choose who will make health care decisions on his or her behalf in case of an emergency. The person who signs a health care proxy is called the principal. The person appointed by a health care proxy to make medical decisions for another person is called a health care agent.

Guardians in Massachusetts are persons appointed by the probate and family court to handle the support, care, education, health and welfare of an incapacitated person.

Health Care Agents:

It is cheaper to appoint a health care agent than a guardian. Health care proxies require less oversight from the courts and preserve more rights for the incapacitated person. On the other hand, health care proxies can only be executed while a person is still competent. Health Care Proxies in Massachusetts are governed by M.G.L. c. 201D: http://www.mass.gov/legis/laws/mgl/gl-201d-toc.htm.

• Any competent person can create a health care proxy, and the principal may revoke a health care proxy by signing a new health care proxy or by notifying his or her named agent and health care providers. A divorce automatically revokes any health care proxy naming your ex-spouse as your health care agent.

• With a health care proxy, you get to choose who you want to make health care decisions for you in the event that you are unable to make decisions for yourself.

• To activate a health care proxy, you must show that the principal cannot make or communicate health care decisions for him or herself. This determination must be made in writing by a treating physician, and it must include an explanation about the cause of incapacity and how long it is expected to last.

• The principal must be told that he or she has lost capacity.
  
• If the principal objects to a health care decision made by a health care agent for any reason, then the principal’s decision will prevail.

• No medical service provider is allowed to require or prohibit a patient from signing a health care proxy. If you already have a health care proxy, do not sign another one at a hospital. It will revoke your original document!

Guardianships:

Guardianships are more expensive and time consuming to obtain than health care proxies, but they include more oversight from the probate and family court and grant broader powers. Guardianships can be obtained only after a person has lost capacity. Guardianships in Massachusetts are governed by M.G.L. c. 190B, Article V. This is a new law which became effective on July 1, 2009, and is not yet available on the Mass.gov website. See http://www.lawlib.state.ma.us/2009/01/uniform-probate-code.html.

• The court will choose who to appoint as your guardian if you become incapacitated.
  
• Any person interested in the welfare of an alleged incapacitated person may petition the probate and family court for the appointment of a guardian. When the court considers who should be appointed as guardian, a person nominated in a power of attorney will have priority, followed by the spouse of an incapacitated person, and then the parent of an incapacitated person.
  
• The person seeking guardianship must file multiple forms with the court, including a petition and a medical certificate. He or she must also give notice to all interested persons (including the alleged incapacitated person), and must appear before the court for a hearing. The person seeking guardianship has the responsibility of proving that the alleged incapacitated person is both incapacitated and in need of a guardian.
  
• Guardians make decisions about an incapacitated person’s support, care, education, health, and welfare. This is a much broader range of powers than that granted by a health care proxy.
  
• A guardian must report to the court about the care of the incapacitated person. He or she must file an account with the court within 60 days of appointment, and once every year thereafter.
  
• An incapacitated person, or any other person interested in the incapacitated person’s welfare, can petition the court to remove a guardian or terminate a guardianship. This would be necessary if an incapacitated person regained capacity, or if a guardian is acting against the interests of the incapacitated person.
  
  

My basic estate planning package includes a health care proxy, and I make sure to send a copy of the health care proxy to my clients' treating physicians. Sometimes, however, it is too late to sign a proxy. If you have a loved one who is no longer competent, he or she will not be able to sign a health care proxy, and guardianship may be the only option to approve treatments or make certain personal decisions. Massachusetts now has the option of limited guardianships, which can be tailored towards a specific purpose, and which may create a more streamlined guardianship process. Next week I will post about the differences between powers of attorney and conservatorships.