Massachusetts Q and A

Ten commonly asked questions about PAD’s for Massachusetts

Note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete overview of the law in your state, nor can they take the place of legal advice. These answers are accurate as of September 2019. 

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

The General Laws of Massachusetts do not provide for PADs.  However, under the law entitled “Health Care Proxies”, you may appoint an agent to make decisions for you if you are unable to make those decisions yourself.  Your agent will have the authority to make any and all health care decisions for you, which could include decisions about psychiatric treatment.  To appoint an agent, you must use the form entitled “Massachusetts Health Care Proxy”.

2.  Can I write advance instructions regarding medications and/or hospitalization?

No.  Neither the Massachusetts statutes nor the Massachusetts Health Care Proxy form allow you to write instructions about your future treatment.  All instructions must be given through your agent.

3.  Does anyone have to approve my advance instructions at the time I make them? 

N/A.

4.  Can I appoint an agent to make mental health decisions for me if I become legally incompetent?

Yes (see question 1 above).

5.  If I become legally incompetent, can my agent make decisions for me about medications and/or hospitalization?

Yes.  If you become legally incompetent to make a particular decision about medication or hospitalization, your agent can make that decisions for you, which might include a decision not to accept the treatment being offered.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?

The statute specifies that your agent must consult with your health care providers and fully consider “acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects”. Having done so, your agent must try to make the decision as you would make it (substituted judgment).  If your agent does not know what you would wish, he or she must make the decision in your best interests.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

You may only appoint an agent (see question 1 above).

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  The decision about whether you lack competence is made my your attending physician, in consultation with a specialist mental health practitioner with expertise in your type of illness or disability.  That decision must be conveyed to you, your agent and the director of your mental health facility, if applicable.  The decision must also be documented.   Once those steps have been taken, your agent has authority to act on your behalf.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Your mental health providers could lawfully decline to follow your agent’s instructions if you were considered dangerous to yourself or others and were therefore involuntarily committed under Chapter 123 of Massachusetts General Laws.  Additionally, if your agent’s instructions were against your physician’s religious beliefs, he or she could decline to follow them.  In that situation, the physician would need to arrange a transfer to another physician who is willing to follow the instructions; if that were impossible, the matter would need to be referred to a court.  Finally, if you were being treated at a private facility, that facility could decline to follow your agent’s instructions if they were against its religious policies, provided those policies had been made clear to you and your agent in advance, where possible.  Again, if the facility declined to follow your agent’s instructions, it would have to arrange a transfer if possible, or seek the guidance of a court.

10.  How long does my PAD remain valid?  

Your “Massachusetts Health Care Proxy Form” is valid until one of the following four events happen: (1) you sign another Health Care Proxy form; (2) if your agent is your spouse, you divorce or become legally separated from that person; (3) you tell your agent or health care providers that you want to revoke your proxy; or (4) you do something else, such as tearing up the document, to indicate that you no longer wish the document to have effect.  The Statutes do not say that you must be competent to revoke the document in order to do so validly.