What happens if you have been named as someone’s Health Care Proxy but you find out, once it has been activated, that the proxy has been changed or the person you are acting for says they no longer want you to make decisions for them. What can you do? As with everything, the answer is “it depends”.
Health Care Proxy and the Individual’s Competence
A Health Care Proxy is a document that allows you to name an individual to “step into your shoes” to handle your health care decision making should you become incompetent or incapacity. Sometimes, however, when someone has lost their capacity and is no longer thinking with a clear mind, they may try and rescind their proxy designation or they may try and refuse to take medication (such as antipsychotics) that they would otherwise agree to take, if they were thinking clearly. We have also encountered situations in which an individual’s competence has failed and an unscrupulous individual attempts to take advantage of them by getting them to sign new documents naming new decision makers.
When an Affirmation of Health Care Proxy is Necessary
If you believe that the changing of the health care proxy or declaration that the person no longer wants you to act in this capacity is a true reflection of their wishes, you can always accept the change or willingly step down. You are never forced to serve as the named proxy. However, if you believe that the change was due to undue influence or the individual did not have competency/capacity when they made the declaration to remove you, then you can take action to ensure that the proxy naming you is recognized and enforceable. This action is called an Affirmation of Health Care Proxy proceeding. This proceeding is held in the Probate and Family Court and is initiated to accomplish one or more of the following:
- Affirm a health care proxy;
- Remove a health care agent, override a health care agent’s decision;
- And/or determine the validity of the health care proxy.
When appropriate, utilizing the court proceeding of Affirming a Health Care Proxy can ensure that an individual’s wishes, expressed when they were competent and free from undue influence of others, will be honored. Supporting our clients’ wishes through their legal documents is our mission; ensuring that those wishes are honored should their competency or capacity wane in the future is a critical part of that support.
Founded by a nurse attorney and with offices in Acton and Sudbury, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning, elder law, and probate to inform and protect loved ones of every generation.
