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Massachusetts Health Care Proxy
Support GuideMassachusetts15 min read

Massachusetts Health Care Proxy

Massachusetts has no living will statute. The health care proxy under M.G.L. c. 201D is the only advance directive, and it takes two witnesses, not a notary.

By Settled Editorial

Massachusetts gives you one statutory advance directive: the health care proxy. Under M.G.L. c. 201D, you appoint a health care agent to make medical decisions for you, sign in front of two adult witnesses, and your agent's authority begins only after your attending physician puts your incapacity in writing. Massachusetts has no living will statute.

This guide walks through what chapter 201D asks for and where Massachusetts parts company with the rest of the country. Read it as a planning map, not as legal advice about your own care. A Massachusetts attorney or your own doctor can confirm your document says what you mean. The money side of incapacity runs through a separate instrument, covered in the Massachusetts power of attorney guide.

What a Massachusetts Health Care Proxy Does

A health care proxy is a document delegating to an agent the authority to make health care decisions (§ 1). It appoints a person. It is not a list of treatments you want or refuse.

Your agent may make any and all health care decisions you could make, including decisions about life-sustaining treatment, subject to any express limits you wrote into the proxy (§ 5). Section 5 also does three things people miss:

  • Your agent gains the right to receive any and all confidential medical information you would be entitled to receive, and the statute grants that right despite any other law to the contrary.
  • Your agent's decisions carry the same priority as your own would over decisions by anyone else, including a person acting under your durable power of attorney.
  • A physician handed your proxy has to arrange for it to go into your medical record.

Your agent does not decide freely. After consulting your providers and weighing the medical alternatives, prognosis, treatments, and side effects, the agent decides according to their assessment of your wishes, including your religious and moral beliefs. Where your wishes are unknown, the agent decides according to their assessment of your best interests.

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Massachusetts Has No Living Will

Here is the part that trips people up. Chapter 201D contains no living will and no separate instruction document, and Massachusetts never enacted a standalone living will statute. Sections 1 through 17 create one thing, the proxy.

Written wishes still matter, and they reach legal force in exactly one place. Section 4 requires your proxy to identify you and your agent, indicate that you intend the agent to have decision-making authority, describe the limitation, if any, you intend to impose on that authority, and indicate that the authority becomes effective on a § 6 incapacity determination (§ 4). Your treatment instructions belong inside that limitation clause. Written there, they bind your agent under § 5. Written on a separate sheet headed "Massachusetts living will," they read as guidance for your agent rather than as a document your hospital must follow.

How to Sign One

Your proxy has to be in writing and signed by you, or signed at your direction, in the presence of two other adults who subscribe their names as witnesses (§ 2). Those witnesses affirm in writing that you appeared to be at least eighteen years of age, of sound mind, and under no constraint or undue influence. That written affirmation belongs to the document itself, not to an optional cover page.

Two rules people get backwards:

  • A notary is not a substitute. Chapter 201D asks for two witnesses and never offers notarization as an alternative or an addition. Massachusetts differs here from states that let a notary stand in for witnesses.
  • The agent is barred from witnessing. Section 2 disqualifies the person named as health care agent. It says nothing about the alternate agent the same section lets you designate, so treat that as unsettled and keep the alternate off the signature line too. A relative or a treating nurse who is not your agent is not disqualified by this chapter. Choosing witnesses who are not in line to inherit is still a habit worth keeping, because it heads off later doubt.

Massachusetts publishes no statutory proxy form. Section 4 sets out required contents, not a layout, so a document that satisfies §§ 2 and 4 is valid whatever paper it sits on. Fill-in forms circulating around Massachusetts hospitals and nonprofits are not the statutory form, because there is none. Chapter 201D also says nothing about electronic signatures or remote witnessing in either direction, so the safe route is paper with both witnesses in the room.

Who Can Serve as Your Agent

Any adult may serve, with one bar. An operator, administrator, or employee of a facility may not be appointed as your agent if, at the time you sign, you are a patient or resident of that facility or have applied for admission there, unless that person is related to you by blood, marriage, or adoption (§ 3).

Name an alternate inside the same document. Your alternate may serve when your agent is not available, willing, or competent to serve and is not expected to become able to make a timely decision given your medical circumstances, or when your agent is disqualified under the chapter.

When Your Agent's Authority Starts

Never on the day you sign. A Massachusetts proxy is always springing, because § 4(iv) makes the document say so and § 6 makes the authority begin only after a determination that you lack the capacity to make or communicate health care decisions. No box on any form hands your agent authority while you can still speak for yourself.

Your attending physician makes that call according to accepted standards of medical judgment, and § 6 controls how:

  • The determination has to be in writing, and it has to give the cause and nature of your incapacity along with its extent and probable duration.
  • It is entered into your permanent medical record.
  • Where your incapacity traces to mental illness or developmental disability, the physician must have, or must consult a health care professional who has, specialized training or experience with conditions of the same or similar nature.
  • A physician you appointed as your agent may not make the capacity determination.
  • Notice goes out promptly, orally and in writing, to you where there is any indication you can comprehend it, to your agent, and to the facility director if you are in or transferred from a mental health facility.

Your voice does not disappear once that paper is signed. If you object to a decision your agent made, your decision prevails unless a court order determines that you lack capacity. And if your physician later determines that you have regained capacity, your agent's authority stops and your own consent is required again, recommencing only if you lose capacity later.

Without a Proxy, Massachusetts Has No Backup List

This is the sharpest contrast with neighboring states, and it is the reason signing a proxy matters more here. Massachusetts has no default surrogate statute, no spouse-first rule, and no ranked next-of-kin order. Any article that hands you a family priority list for Massachusetts is describing some other state's law.

Section 16 says something much narrower. Where no proxy was executed, nothing stops a health care provider from relying upon the informed consent of responsible parties on behalf of incompetent or incapacitated patients to the extent permitted by law, and a failure to appoint an agent creates no presumption about your wishes (§ 16). That leaves hospitals working case by case. When a formal decision maker is needed, a family member has to petition the Probate and Family Court for a guardianship under c. 190B, Article V, which costs money and, on the state's own figures, usually takes about two to four months when uncontested and longer when it is not.

The ranking that does exist runs the other way. Where a proxy is in force, absent an order of the court to the contrary, your agent's health care decision takes precedence over a guardian's, and a guardian may not revoke your proxy without authorization of the court (c. 190B, § 5-309). A guardian also cannot consent alone to treatment that calls for a substituted judgment determination, such as antipsychotic medication. That takes a hearing at which counsel is provided for an indigent minor or incapacitated person, a specific court finding that you would consent if competent, an approved treatment plan, and review at least annually (§ 5-306A).

Changing or Revoking It

Revocation here is deliberately easy (§ 7). You may revoke by notifying your agent or a health care provider orally, by notifying them in writing, or by any other act evidencing a specific intent to revoke, such as destroying the document. Signing a later proxy revokes the earlier one. So does divorce or legal separation from a spouse who is your agent.

You are presumed to have the capacity to revoke unless a court order says otherwise, so a § 6 incapacity determination does not by itself strip that power. A physician told of a revocation has to record it immediately in your medical record and notify your agent and your other treating providers, orally and in writing. Any agent or nursing staff member who learns of a revocation has to tell the attending physician.

Nothing in chapter 201D expires. Your proxy stands until you revoke it, so review it after a marriage, a divorce, a move, or a serious diagnosis rather than on a schedule.

When a Doctor or Hospital Refuses

A physician does not have to honor a decision that runs against their moral or religious views, and a private facility does not have to honor one that conflicts with a formally adopted policy expressly based on religious beliefs and disclosed to you or your agent before or upon admission (§ 14, § 15). What follows the refusal matters more than the refusal. You have to be transferred to another physician in the same facility, or to an equivalent facility reasonably accessible to your family, that is willing to honor the decision. Where no transfer can be arranged, the physician or facility has to seek relief from a court or honor the decision. That objection is conditional, not a veto: § 15 reaches only a facility that would be permitted by law to refuse the decision had the principal made it, and it requires the facility to arrange transfer to an equivalent, reasonably accessible facility willing to honor the agent, or else to seek judicial guidance or honor the decision.

Four more protections sit in the same chapter:

  • Providers and agents who act in good faith face no criminal or civil liability, and a provider is not treated as having engaged in unprofessional conduct (§ 8).
  • Serving as agent does not put your agent on the hook for your bills. Cost liability is the same as if you had made the decision yourself (§ 9).
  • Nobody may require or prohibit signing a proxy as a condition of health care services or insurance (§ 10). Section 10 states that prohibition without naming a crime or setting a penalty.
  • A proxy or similar instrument you signed in another state under that state's law stays enforceable in Massachusetts, subject to the two conscience provisions above (§ 11).

Chapter 201D does not condone or authorize suicide or mercy killing (§ 12), and it never blocks a procedure the attending physician deems necessary for comfort care or pain alleviation, including sedatives and pain-killing drugs, non-artificial oral feeding, suction, and hygienic care (§ 13). When a dispute cannot be settled at the bedside, the provider, your conservator or guardian, a family member, a close friend, or the commissioner of public health may bring a special proceeding to test the validity of the proxy, remove an agent acting in bad faith, or override a decision that departs from the § 5 standards (§ 17).

MOLST and DNR Orders Sit Outside the Statute

Massachusetts clinicians also use medical order sets, including MOLST, short for Medical Orders for Life-Sustaining Treatment, and a prehospital comfort care form. None of them appear anywhere in chapter 201D. They are clinical orders signed by a clinician, and their authority comes from health department regulation rather than from the proxy statute. Ask your care team how a MOLST form would sit alongside your proxy, and treat neither one as a replacement for the other. One change is already scheduled: Massachusetts is moving from MOLST to the national POLST model in 2027. Until then the MOLST form is still valid and still the one to use, and a MOLST signed now stays valid and will be honored after the switch.

A Planning Sequence

  1. Choose your agent, ask them before you name them, and add an alternate in the same document.
  2. Put any limits you want on your agent's authority into the proxy under § 4(iii), not on a separate wishes page.
  3. Sign in front of two adult witnesses who are not your agent, and have them complete the written affirmation § 2 calls for.
  4. Give signed copies to your agent, your alternate, your doctor, and your hospital, and ask that a copy go into your medical record.
  5. Pair the proxy with a durable power of attorney so someone can handle your money as well as your care.
  6. Review it after a marriage, a divorce, a move, or a new diagnosis, and replace old copies whenever you change it.

A health care proxy covers medical decisions and nothing else. The Massachusetts power of attorney guide covers the financial half of incapacity planning, Massachusetts guardianship planning covers the court route when no proxy exists, and Massachusetts estate planning basics sets out the rest of the document set. The Massachusetts probate and estate directory ties the state pages together.

This guide is general information about incapacity planning in Massachusetts. M.G.L. c. 201D and the official Massachusetts General Laws control. Confirm anything that affects your care with a licensed Massachusetts attorney or your own physician before you sign or rely on a health care proxy.

Sources:

It is not legal advice.

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Information current as of July 29, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Massachusetts can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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