Bill S.1047 194th (Current)

Massachusetts is one of only four states without a statute providing for the appointment of a surrogate decision maker for an incapacitated patient who does not have a health care proxy. Instead, Massachusetts health care providers must go through the difficult process of seeking a judicially appointed medical guardian before even routine decisions about care can be made. Then, after a medical guardian is appointed, some decisions—including those related to transfers to nursing facilities—require additional judicial approval. These cumbersome processes are a disservice to incapacitated patients, whose care can be delayed by weeks. They also generate unnecessary health care costs and necessitate an inefficient allocation of hospital resources. This bill would create a more practical process for handling the care of incapacitated patients without a health care proxy. It would allow attending physicians to appoint surrogate decision makers and identifies several candidates for that role, including the incapacitated patient’s spouse (unless legally separated), parent, adult child, or adult sibling. A surrogate would not be empowered to make decisions about transferring to an inpatient mental health facility. Nor would a surrogate be able to make any decision for which a substituted judgment determination may be required, which includes “extraordinary” decisions about life support, sterilization, and abortion, among other things. The bill would ensure that decisions about an incapacitated patient’s care can be made in a safe and timely manner, and that such decisions conform as closely as possible to the patient’s values and desires.