Health Care Proxy vs. Power of Attorney in Massachusetts

The short answer

A health care proxy and a power of attorney give someone authority to act for you, but over different decisions. A Massachusetts health care proxy appoints a health care agent to make medical decisions if you are unable to make them yourself. A durable power of attorney appoints an agent to handle financial and legal matters, such as banking, property and bills. Most estate plans include both. They have different signing requirements: a health care proxy needs two adult witnesses, while a power of attorney is typically notarized.

Side by side

The Massachusetts health care proxy

Under M.G.L. c. 201D, any competent adult can appoint a health care agent. The proxy must be signed by you, or by another person at your direction and in your presence, in the presence of two adult witnesses who also sign. Your health care agent cannot serve as a witness. The agent's authority begins only when your attending physician determines that you lack the capacity to make or communicate health care decisions. Massachusetts does not have a living will statute, so many people pair the proxy with written instructions for their agent.

The durable power of attorney

A durable power of attorney stays in effect if you become incapacitated, which is what makes it useful in estate planning. Massachusetts law does not require witnesses or notarization for a power of attorney to be valid. In practice, banks, brokerages and the Registry of Deeds expect a notarized power of attorney: a power of attorney used to sign a deed must be acknowledged before a notary to be recorded. That is why estate planning attorneys almost always have it notarized.

Do you need both?

Usually, yes. A health care agent cannot pay your bills or manage your property, and a financial agent cannot make medical decisions for you. Without these documents, your family may need to ask the Probate and Family Court to appoint a guardian or conservator, which takes time and money. An estate planning attorney can advise on what your plan should include.

Signing at home or in the hospital

Health care proxies and powers of attorney are often needed urgently, sometimes after a hospital admission. We come to hospitals, rehabilitation centers and care facilities across Greater Boston. For a signer who cannot sign their name, Massachusetts allows a signature by mark with two witnesses. We confirm identity, capacity concerns and witness arrangements before we arrive. See Hospital & Bedside Notary and Signature by Mark.

Using a power of attorney abroad

A power of attorney for property, banking or legal matters in another country usually needs to be notarized and apostilled, and often translated. Foreign offices may require specific wording. See Powers of Attorney for Use Abroad.

Other documents often signed with them

• HIPAA authorization. Lets named people receive your medical information.
• MOLST. A medical order for life-sustaining treatment, completed with your clinician, not a notary.
• Will and trust. Govern what happens to your property after death. See Trust Documents.
• Personal care instructions. Written wishes that guide your health care agent.

Choosing your agents

Choose people you trust who can act calmly under pressure and who understand your wishes. Name alternates in case your first choice is unavailable. Give copies of your health care proxy to your agent, your doctors and your hospital. Keep the original power of attorney safe and tell your agent where it is.