Planning for Life

Does a Health Care Proxy Trump Guardianship

Posted by Harry S. Margolis on August 12, 2011

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By Harry S. Margolis

We had an inquiry from a nursing home about whether a guardian needed court approval to move a nursing home resident to another facility when she also had a health care proxy.

Under the Massachusetts guardianship law, guardians must first seek court approval before placing the protected person in a nursing home. However, agents under health care proxies have the right to make health care decisions for individuals and, presumably, this would include placement in a nursing home.

So, the question is which governs, the health care proxy or the guardian?  Here's the answer provided by Margolis & Bloom of counsel attorney Rebecca J. Benson:

The guardianship statute states that a court-appointed guardian may not revoke a health care proxy without court authorization.  If a health care proxy is in effect, absent an order of the court to the contrary, a health-care decision of the agent takes precedence over that of a guardian.

In short, individuals can avoid the extra cost of seeking court approval for nursing home placement if they have appointed an agent under a valid health care proxy.
 
But Attorney Benson also points out that just as anyone can create a health care proxy, anyone who has capacity can revoke one. When an individual refuses to comply with a move to a nursing home approved by the agent under the health care proxy, this may be deemed a revocation of the original instrument. "An even thornier issue," Benson says, "is that the agent (or hospital) can ask the court to “affirm” the HCP, which could really become tantamount to a guardianship, but without all of the procedural safeguards."

Topics: nursing homes, guardianship

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