Living Wills Under Massachusetts Law

A living will is a legal document sometimes also known as an advance directive. It is not the same thing as a health care proxy, though people sometimes prepare both documents as part of their estate planning.

Massachusetts does not recognize living wills as legally binding. It is still important to understand what they are and what they do, because there may be reasons you would like to make one.

The Difference Between a Living Will and a Health Care Proxy

A health care proxy simply designates the person you choose to make decisions about medical treatment for you if you cannot. It is sometimes referred to as a medical power of attorney. Your health care agent or proxy will ideally be informed about your wishes, but he or she has the authority to make decisions without reference to those wishes.

A living will or advance directive lays out your preferences ahead of time, if you have them. For example, if you know there are certain life saving measures you don't want, you can list them. It may be conditional. You may want all life-saving measures if you are in an accident but otherwise healthy, but not if you have a terminal illness.

Why Make a Living Will in Massachusetts?

There are several reasons you might consider a living will even though Massachusetts does not recognize them.

First, your health care proxy might appreciate the guidance of a living will. Being a health care proxy can be a large responsibility if you become seriously ill or injured, and you can help that individual by being clear about what you want. The Massachusetts Medical Society has recognized that even though unenforceable, living wills are still useful to proxies and to medical providers.

Second, if you have an accident in another state that does recognize living wills, your family members can use it to help providers make medical decisions.

Third, creating a living will is an excellent opportunity for you to have conversations with your close family about your wishes and beliefs regarding care.

How Can You Make Sure Your Wishes are Followed Without a LIving Will?

The short answer is that you can't guarantee it, at least in Massachusetts at the moment. Massachusetts is one of the few states tat allows health care proxies and does not also recognize living wills. There is always a chance that the law will change in the future.

In the meantime, your best strategy is to be clear with your proxy and close family members about what you want. This is also a good conversation to have with your primary care physician or any specialists you are working with if you have an illness.

Where Should You Kepp Your Living Will and Health Care Proxy?

There may not be a lot of time to prepare if the situation arises where your proxy is needed. You should make sure the person who is the proxy and anyone you name as an alternative each have a copy. You can also give a copy to your primary care physician, who would most likely be contacted in an acute medical situation.

If you have decided to prepare a living will, copies of that should be given to whoever you have given copies of the proxy to.

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