If you ask a lawyer a general legal question, the answer is usually “it depends.”
But here in Massachusetts, I can give you a definitive answer to the question, “Do I need a living will?” The answer will always be “No.”
A “Living Will” is a legally binding document that identifies a person’s healthcare wishes in the event she becomes incapacitated.
You may have heard it confused with a Healthcare Proxy, which is a person who is appointed to make healthcare decisions for someone who has become incapacitated. A living will makes the healthcare decisions for the incapacitated person.
Except in Massachusetts.
The Commonwealth places no legally binding effect on living wills. Although a living will can tell a healthcare proxy what the incapacitated person would like done in certain events, the healthcare proxy does not have to follow those wishes. A court will not enforce a living will over the healthcare proxy’s decision.
What’s a person to do?
For those who have strong feelings about end of life decisions, there are several options.
- Designate a healthcare proxy and alternate proxy. Make it clear to your caregivers that you trust certain people with your medical decisions by filling out a Healthcare Proxy designation form. We include Healthcare Proxy forms, and the witnesses to execute them correctly, in all of our estate plans. If you need a form right now, you can download one for free at the Massachusetts Medical Society.
- Discuss your wishes with your proxy and alternate proxy. Then memorialize this conversation in writing, to help your proxy remember your wishes. If your proxy is making healthcare decisions for you, she will be in a stressful situation and will appreciate the extra effort you took to write down your wishes.
Remember, however, the document is not legally binding. Therefore, there are no formal procedures or format to follow when writing down your wishes.
- Do Not Resuscitate (DNR): If you feel strongly that you do not want resuscitation, speak with your doctor. She will have to write the DNR. It is a medical, not a legal document. There is no need to speak with your attorney. Speak with you doctor.
Be aware, however, that a DNR is limited to resuscitation. It does not address other end of life care decisions, such as artificial nutrition and pain medication. Also, a DNR may prevent your organs from being donated because they must be harvested immediately after death. The Center For Organ Recovery and Education provides more information here.
- Medical Orders for Life-Sustaining Treatment (MOLST): Like a DNR, this is a medical document that is signed by your doctor. It encompasses more than just resuscitation, and it provides an option for those who would prefer life-sustaining treatment only temporarily. Why would someone opt for temporary life-sustaining treatment? It would increase her chances for a successful organ, tissue, and cornea donation. It would allow family members an opportunity to say goodbye and be present while life-sustaining treatment is removed.
The MOLST is free and available without speaking with an attorney or a doctor. Download the form, with instructions, here. Remember, however, that your doctor needs to sign this form.
Rarely will a lawyer say that there is a legal document you don’t need. (It’s bad for business!)
With a free and more effective alternative to a living will, there is simply no need to execute a formal living will. Speak with your doctor about a MOLST and speak with your proxy about your wishes.