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SENATE DOCKET, NO. 156 FILED ON: 1/8/2025
SENATE . . . . . . . . . . . . . . No. 1047
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Cynthia Stone Creem
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act improving medical decision making.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :Cynthia Stone CreemNorfolk and Middlesex 1 of 9
SENATE DOCKET, NO. 156 FILED ON: 1/8/2025
SENATE . . . . . . . . . . . . . . No. 1047
By Ms. Creem, a petition (accompanied by bill, Senate, No. 1047) of Cynthia Stone Creem for
legislation to improve medical decision making. The Judiciary.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 928 OF 2023-2024.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Fourth General Court
(2025-2026)
_______________
An Act improving medical decision making.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. The legislature hereby finds and declares that The Commonwealth of
2Massachusetts recognizes the fundamental right of an adult to determine the nature and extent of
3health care the individual will receive, including treatment provided during periods of incapacity.
4While all persons have a right to make a written directive, not all take advantage of that right,
5and it is the purpose of the surrogacy provisions of this chapter to ensure that health care
6decisions can be made in a timely manner by a person’s next of kin, friend or other qualified
7individual without involving court action. This chapter specifies a process to establish a
8surrogate decision-maker when there is no valid advance directive or a guardian, as defined in c.
9190B § 5-101, to make health care decisions. 2 of 9
10 SECTION 2. Chapter 201D of the General Laws is hereby amended by inserting in
11Section 1 the following definitions:
12 (1)(a) “Available”, that a person is not “unavailable”. A person is unavailable if (i) the
13person’s existence is not known, or (ii) the person has not been able to be contacted by telephone
14or mail, or (iii) the person lacks decisional capacity, refuses to accept the office of surrogate, or
15is unwilling to respond in a manner that indicates an informed choice among the treatment
16matters at issue.
17 (1)(b) “Attending physician”, a licensed physician in Massachusetts selected by or
18assigned to the person and who has primary responsibility for treatment and care of the person. If
19more than one physician shares that responsibility, the physician most familiar with the person’s
20status and condition may act as the attending physician under this Act.
21 (1)(c) “Incapacitated person” a person is incapacitated for decision-making regarding his
22or her health care if the person is unable to understand the nature and consequences of proposed
23medical treatment, including its risks and benefits, or is unable to express a preference regarding
24the treatment.
25 (1)(d) “Qualified individual” shall be an adult who has exhibited special care and concern
26for the person, who is familiar with the person’s personal values, who is reasonably available and
27who is willing to serve.
28 SECTION 3. Chapter 201D of the General Laws is hereby amended by adding after
29section 17 the following new section:-
30 Section 18: Surrogate Decision Making 3 of 9
31 1. Applicability- This Section applies to “incapacitated persons” as defined in subsection
322 of this Act. This Section does not apply to instances in which the person has an operative and
33unrevoked Health Care Proxy under this Chapter 201D, or has an operative Medical Order for
34Life Sustaining Treatment (“MOLST”) form and the person’s conditions falls within the
35coverage of the health care proxy and/or MOLST form. In those instances, the Health Care
36Proxy or MOLST form shall be given effect according to its terms.
37 2. Decisions concerning medical treatment on behalf of a person without decisional
38capacity are lawful, without resort to the courts or legal process, if a person does not have a
39condition subject to GL 190B Section 5-306A (Substituted Judgment) and if decisions are made
40in accordance with one of the following paragraphs of this subsection and otherwise meets the
41requirements of this Section. A surrogate decision maker appointed pursuant to this Section has
42authority to make decisions regarding transfers and/or admission to a nursing facility. A
43surrogate decision maker appointed pursuant to this Section shall not have the authority to admit
44or commit a patient without decisional capacity to an inpatient mental health facility as defined
45in the regulations of the Department of Mental Health.
46 3. Court appointed guardianship for incapacitated persons, pursuant to GL 190B, remains
47a valid means of establishing a medical decision-maker.
48 4. Decisions concerning medical treatment on behalf of an incapacitated person may be
49made by surrogates in the order of priority provided in Section 9 in consultation with the
50attending physician. A surrogate decision maker shall make decisions for the person conforming
51as closely as possible to what the person would have done or intended under the circumstances,
52taking into account evidence that includes, but is not limited to, the person’s philosophical, 4 of 9
53religious and moral beliefs and ethical values relative to the purpose of life, sickness, medical
54procedures, suffering and death. Where possible, the surrogate shall determine how the person
55would have weighed the burdens and benefits of initiating recommended medical treatment
56against the burdens and benefits of refusing treatment. In the event an unrevoked health care
57proxy is no longer valid due to a technical deficiency or is not applicable to the person’s
58condition, that document may be used as evidence of a person’s wishes. If the person’s wishes
59are unknown and remain unknown after reasonable efforts to discern them, the decision shall be
60made on the basis of the person’s best interests as determined by the surrogate decision maker. In
61determining the person’s best interests, the surrogate shall weigh the burdens on and benefits to
62the person of initiating recommended medical treatment against the burdens and benefits of
63refusing treatment and shall take into account any other information, including the views of
64family and friends, that the surrogate decision maker believes the person would have considered
65if able to act for herself or himself.
66 5. For purposes of this Section, a person lacks capacity to make a decision regarding his
67or her health care if the person is unable to understand the nature and consequences of a
68proposed medical treatment, including its risks and benefits, or is unable to express a preference
69regarding the treatment To make the determination regarding capacity, the physician shall
70interview the person, review the person’s medical records, and consult with skilled nursing or
71intermediate care facilities as appropriate. The physician may also interview individuals having
72recent care and custody of the person, as well as family members and friends of the person, if
73any have been identified.
74 6. When a person becomes an incapacitated person, the health care provider must make a
75reasonable inquiry as to the availability and authority of a health care proxy. When no health 5 of 9
76care proxy is available, the health care provider shall make a reasonable inquiry as to the
77availability of possible surrogates listed in items (A) through (E) of Subsection 9. For purposes
78of this Section, a reasonable inquiry includes, but is not limited to, identifying a member of the
79person’s family or other health care agent by examining the person’s personal effects or medical
80records. If one or more family members or health care agents or alternate health care agents are
81identified, the health care provider shall attempt to contact them. No person shall be liable for
82civil damages or subject to professional discipline based on a claim of violating a person’s right
83to confidentiality as a result of making a reasonable inquiry as to the availability of a person’s
84family member or health care agent or alternate health care agent except for willful or wanton
85misconduct.
86 7. The person’s surrogate shall be an adult who has exhibited special care and concern for
87the person, who is familiar with the person’s personal values, who is reasonably available, and
88who is willing to serve.
89 8. A health care provider shall require an individual claiming the right to act as surrogate
90for the person to provide a written declaration under penalty of perjury, stating facts and
91circumstance reasonably sufficient to establish the claimed authority.
92 9. Consideration may be given, in order of descending preference for serve as a surrogate,
93to:
94 A. The person’s spouse, unless legally separated;
95 B. The person’s adult child;
96 C. The person’s parent; 6 of 9
97 D. The person’s adult sibling;
98 E. Any other adult who satisfies the requirement of subdivision 7.
99 10. Where there are multiple possible surrogate decision makers at the same priority
100level, the attending physician or the advanced practice nurse practitioner shall, after a reasonable
101inquiry, select as the surrogate the person who reasonably appears to be best qualified. The
102following criteria shall be considered in the determination of the person best qualified to serve as
103the surrogate:
104 a. Whether the proposed surrogate reasonably appears to be better able to make decisions
105either in accordance with the known wishes of the person or in accordance with the person’s best
106interests;
107 b. The proposed surrogate’s regular contact with the person prior to and during the
108incapacitating illness;
109 c. The proposed surrogate’s demonstrated care and concern;
110 d. The proposed surrogate’s availability to visit the incapacitated person during his or her
111illness; and
112 e. The proposed surrogate’s availability to engage in face-to-face contact with health care
113providers for the purpose of fully participating in the decision-making process
114 11. The attending physician may select a proposed surrogate who is ranked lower in
115priority if, in his or her judgment, that individual is best qualified, as described in subsection 10,
116to serve as the incapacitated person’s surrogate. The attending physician shall document in the 7 of 9
117incapacitated person’s medical records his or her reasons for selecting a surrogate in exception to
118the priority order provided in subsection (9) of this Section.
119 12. The following persons may not serve as a surrogate: (i) No person who is the subject
120of a protective order or other court order that directs that person to avoid contact with the person
121shall be eligible to serve as the person’s surrogate. (ii) No person shall be identified as surrogate
122over the express objection of the person, and a surrogacy shall terminate if at any time a person
123for whom a surrogate has been appointed expresses objection to the continuation of the
124surrogacy. (iii) A treating health care provider of the person who is incapacitated; (iv) an
125employee of a treating health care provider not related to the person who is incapacitated; (v) an
126owner, operator or administrator of a health care facility serving the person who is not related to
127the person who is incapacitated; or (6) any person who is an employee of an owner, operator or
128administrator of a health care facility serving the person who is incapacitated who is not related
129to that person.
130 13. Unless the principal regains health decision-making capacity, or specifies a shorter
131period, a surrogate designation under this Section is effective only during the episode of
132treatment or illness when the surrogate decision is made, or for 90 days, which period is shorter.
133 14. After a surrogate has been identified, the name, address, telephone number, and
134relationship of that person to the person shall be recorded in the person’s medical record.
135 15. Any surrogate who becomes unavailable for any reason may be replaced by applying
136the provisions of Subsections 7 through 12 of this Section, in the same manner as for the initial
137choice of surrogate. 8 of 9
138 16. In the event an individual of a higher priority to an identified surrogate becomes
139available and willing to be the surrogate, the individual with higher priority may be identified by
140the attending physician if such identification satisfied the requirements of subsections 7 through
14112 of this Section.
142 17. The surrogate decision maker shall have the same right as the person to receive
143medical information and medical records and consent to disclosure.
144 18. No physician shall be required to identify a surrogate, and may, in the event a
145surrogate has been identified, revoke the surrogacy if the surrogate is unwilling or unable to act.
146 19. Every health care provider and other person (a “reliant”) shall have the right to rely
147on any decision or direction by the surrogate decision maker (the “surrogate”) that is not clearly
148contrary to this Section, to the same extent and with the same effect as though the decision or
149direction had been made or given by a person with decisional capacity. Any person dealing with
150the surrogate may presume in the absence of actual knowledge to the contrary that the acts of the
151surrogate conform to the provisions of this Section. A reliant will not be protected who has
152actual knowledge that the surrogate is not entitled to act or that any particular action or inaction
153is contrary to the provision of this Section.
154 20. A health care provider (a “provider) who relies on and carries out a surrogate’s
155directions and who acts with due care in accordance with this Section shall not be subject to any
156claim based on lack of personal consent or to criminal prosecution or discipline for
157unprofessional conduct. Nothing in this Act shall be deemed to protect a provider from liability
158for the provider’s own negligence in the performance of the provider’s duties in carrying out 9 of 9
159instructions of the surrogate, and nothing in this Act shall be deemed to alter the law of
160negligence as it applies to the acts of any surrogate or provider.
161 21. A surrogate who acts or fails to act with due care and in accordance with the
162provision of this Act shall not be subject to criminal prosecution or any claim based upon lack of
163surrogate authority or failure to act. The surrogate shall not be liable merely because the
164surrogate may benefit from the act, has individual or conflicting interest in relations to the care
165and affairs of the person, or acts in a different manner with respect to the person and the
166surrogate’s own care or interests.
167 22. The health care providers, staff, and/ or facility caring for the patient without
168decisional capacity, the conservator, members of the patient without decisional capacity’s family,
169a close friend of the patient without decisional capacity, or the commissioner of public health
170may commence a special proceeding in a court of competent jurisdiction, with respect to any
171dispute arising under this chapter, including, but not limited to, a proceeding to:
172 a. have the surrogate decision maker removed on the ground that the surrogate decision
173maker is not reasonably available, willing or competent to fulfill his or her obligations under this
174chapter or is acting in bad faith; or
175 b. override the surrogate decision maker’s decision about health care treatment on the
176grounds that: the decision was made in bad faith or the decision is not in accordance with the
177standards set forth in section five.