Massachusetts Living Will Attorney

elderly couple speaking with an attorney about their trust

What is a Living Will?

In our office, we have shifted our terminology to “Advance Directive” but the name “Living Will” is how this document is more commonly referenced. An “Advance Directive” or “Living Will”, is a written statement that details a person’s wishes regarding their medical treatment. A living will specifies whether a person would like to refuse or accept medical treatment should they become terminally ill, seriously injured, unable to communicate or unconscious. Living wills are typically drafted by a living will attorney who specializes in estate planning.

Learn more: Read “Six Important Facts About Advance Directives in Massachusetts

It is important to note that Massachusetts is one of only three states in the country that does not recognize living wills as legally enforceable estate planning documents. Please see below for more information about how Massachusetts handles a person’s wishes when communicated through an advance directive. 

Regardless of the legal status of living wills in Massachusetts, creating a living will is a beneficial part of any thorough estate plan. Making a living will can help families immensely when they need to decide whether or not to take a loved one off of life support or when making other difficult medical decisions. 

At the law firm of Surprenant & Beneski, PC, we understand that thinking about the difficult medical situations one might find themselves in can be emotionally challenging. Our lawyers skillfully and empathetically help our clients make their wishes known through a living will. 

Once the living will is on record, the document will help family members and medical professionals facilitate conversations about difficult medical decisions. When a loved one makes his or her preferences known in a living will, family members feel more secure that they are making the right decisions on behalf of their loved ones. 

When is a Living Will Necessary?

A living will (aka, an Advance Directive) is a written document that states what kind of medical treatment a person would like to receive in the future, such as if they would like to be on life support should he or she become incapacitated. 

The wishes that are outlined in a living will only become relevant when a person can no longer communicate his or her desires. The provisions in a living will usually address medical decisions that must take place after one of the following situations takes place:

  • A terminal illness/incapacity
  • A serious injury
  • Long-term unconsciousness
  • Persistent vegetative state

The document will often address whether or not the creator wishes to receive one or more of the following medical interventions:

  • Feeding tube
  • Artificial hydration
  • Pain medication

The creator of the living will employ complete control over the wishes he or she sets forth. For example, the document might state that the individual would like pain medication but would not want to receive tube feeding and artificial hydration. 

What Happens When a Person Does Not Have a Living Will?

As stated above, living wills are not legally recognized documents in the Commonwealth of Massachusetts. In cases in which a Health Care Proxy is also absent, and an individual is seriously injured or ill and becomes unable to make their own medical decisions, a Massachusetts court will appoint a healthcare proxy to make decisions on his or her behalf instead of going by the terms of a living will. 

Judges often consider the provisions in a living will when determining a proxy, even though they are not required to do so. Similarly, doctors are not required to follow the wishes outlined in a patient’s living will when providing care, however, many doctors will follow the wishes outlined in a living will when presented with the document, especially if the health care proxy is in agreement. 

While not legally binding, this important estate planning document can help family members to better understand their loved one’s wishes. Should a friend or a family member become their loved one’s health care proxy, a living will can help the proxy make confident decisions. 

Decisions, such as deciding to sustain or remove life support can be extremely emotionally challenging for a health care proxy. When a proxy knows that their loved one clearly stated his or her wishes in a living will, the proxy often feels more secure in making difficult medical decisions.

Choosing Your Own Health Care Proxy in Massachusetts

Although living wills are not legally binding or enforceable, Massachusetts law does recognize health care proxy documents as legally binding. Similar to how a judge can assign a health care proxy when an individual is unable to communicate for themselves, an individual can also declare through a legal document who they want their health care proxy to be to make medical decisions on their behalf should they ever become unable to make their own medical decisions. Individuals can appoint a person who is at least 18 years of age to act as their health care proxy should they become incapacitated. 

The creator of the health care proxy can give their health care proxy the ability to make all medically-related decisions. Or, the creator of the health care proxy can limit the proxy’s authority to a list of specific medical treatments he or she would like to reject or accept. 

The provisions within a health care proxy only take effect after a doctor or medical professional declares in writing that an individual is unable to make his or her own medical decisions. Health care proxies also have the authority to talk to their friends or loved ones’ doctors about their health status and prognosis. 

Understanding HIPAA Releases

A HIPAA Release is a document in which you can list individuals who you wish to have access to your private Health Care information. There may be instances where you would like your spouse, children, or parents to have access to this information. It can be very frustrating if you need someone to call an insurance company about a bill or a claim and the company will not speak with your spouse or anyone but you. This also allows individuals to get results from tests or find out other health-related information.

What kind of medical decisions do you make in a living will?

A living will, or an advance directive, allows you to state your preferences for incapacity or end-of-life medical care. Here are some of the medical wishes you might decide to include in your living will:

  1. Resuscitation: This includes CPR and other measures to restart the heart or breathing once they’ve stopped.
  2. Mechanical Ventilation: If you become unable to breathe on your own, this equipment can take over your breathing.
  3. Dialysis: This machine processes your blood in case your kidneys are not able to.
  4. Hydration and Nutrition: If you’re unable to eat or drink, you can receive nutrition and hydration through an IV or a feeding tube.
  5. Palliative Care: This involves measures to keep you comfortable and manage pain, even if those measures could shorten your life. It can also include specifications about where you wish to receive such care (home, hospital, hospice, etc.)
  6. Antibiotics or Antiviral Medications: If you become ill, these treatments could be used to attempt to cure or halt the progression of an infection or illness.
  7. Comfort Care (Palliative Care): If you become seriously or terminally ill, you may wish to specify that your care should focus on relieving pain and discomfort, rather than extending life.
  8. Organ and Tissue Donations: You can express whether you wish to donate organs and tissues after death.
  9. Donation of Your Body for Scientific Study: If desired, you may wish to have your body donated to science after death.
  10. Withholding Treatment: You might prefer not to receive treatment beyond what’s necessary to keep you comfortable.
  11. DNR and DNI Orders: Do not resuscitate (DNR) and do not intubate (DNI) orders indicate that you do not wish to have cardiopulmonary resuscitation or be placed on a ventilator if your heart or breathing stops.
  12. Use of Experimental Treatments or Clinical Trials: Some may express a desire to participate in experimental treatments or clinical trials to advance medical knowledge, even if it may not benefit their own health condition.
  13. Blood transfusions: In certain situations, a blood transfusion may be needed to save your life, however, some people’s strongly held beliefs do not allow blood transfusions. This should be decided in your living will.

Contact Our Massachusetts Living Will Attorney

Regardless of the value of a person’s assets or age, creating a living will is an essential part of Massachusetts estate planning. A debilitating accident or severe illness can happen at any time to any of us. Every Massachusetts resident should ensure that medical professionals will follow his or her medical wishes. Southeastern Massachusetts is home to a large retired community. 

Our law firm has helped many clients who are at or approaching retirement age create effective living will documents. Our founding attorneys are two of only 24 Certified Elder Law Attorneys in the state of Massachusetts. Our firm focuses on estate planning because we understand the vital role estate planning documents play in each client’s journey. 

The estate planning lawyers at Surprenant & Beneski, PC, understand the importance of living wills. Our founding attorney decided to focus our law firm on estate planning after walking through his mother’s dementia diagnosis. We know how challenging end-of-life decision-making can become for family and friends.  

Our skilled lawyers listen carefully to the wishes of our clients and draft living will documents that accurately reflect their preferences entirely and clearly. With law offices in New Bedford, Easton, and Hyannis, we serve clients throughout Southeastern Massachusetts. Contact our law firm today to schedule your initial consultation and learn how we can help you create a living will.

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