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Do You Need A Living Will?

August 31, 2016 by Rebecca 3 Comments

Some helpful things I can do instead of a living will. Note to self: I still need a Last Will and Testament. But not a "living will"

 

If you ask a lawyer a general legal question, 99% of the time, the answer will be “it depends.”

That is not the case if you ask a Massachusetts lawyer, “Do I need a living will?” The answer will always be “No.”

Why?

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.

  • 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.Some helpful things I can do instead of a living will. Note to self: I still need a Last Will and Testament. But not a "living will"

Filed Under: Estate Planning

Reader Interactions

Comments

  1. Maxine Wilson says

    August 28, 2017 at 5:26 pm

    My husband and I don’t have a will set up, and now that we have kids, we need to get on that. We don’t want our kids to have to make any hard decisions o our behalf. I like what you said about deciding on whether or not you want to sign a DNR.

    Reply

Trackbacks

  1. Four Documents Young Adults Should Take to College ⋆ Bedford Family Lawyer says:
    June 4, 2019 at 11:13 am

    […] This document springs into effect when the person is incapable of making medical decisions for themselves. The “proxy” steps into their shoes and makes medical decisions for them. These decisions can always be overridden by the patient. More information about healthcare proxies is here. […]

    Reply
  2. What Do I Need in my Estate Plan? ⋆ Bedford Family Lawyer says:
    February 20, 2020 at 10:31 am

    […] from a terminal illness or in a vegetative state and unable to share your wishes with your doctor. Living wills are not legally recognized in Massachusetts, however, it is important to discuss your wishes for medical care with your proxies so that they […]

    Reply

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9.5Rebecca Green Neale

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