What is a Living Will?
A living will, also known as an advanced medical directive, directs your family and medical providers as to how you would like to be treated in the event of your incapacity.
However, states vary in their rules surrounding living wills.
How does a Living Will work in Massachusetts?
In Massachusetts, the living will is not a statutorily authorized or a binding legal document, but rather a helpful guide for your health care proxy. A healthcare proxy is the term used in Massachusetts to describe the person in charge of making medical decisions for you in the event of your incapacity.
That is why, for our Massachusetts clients, we typically include a provision inside their health care proxy document called “My Advanced Medical Directive,” which clarifies how the health care proxy should go about making decisions regarding your care, especially if/when you enter a vegetative state or require artificial life support.
You should also be aware that in Massachusetts, there are other health care documents like a MOLST, which stands for Medical Order Life-Sustaining Treatment, that can be completed between you and your physician - although most clients wouldn’t get this type of document completed unless they were elderly or terminally ill. Even then your health care proxy could override the MOLST.
How does a Living Will work in New Hampshire?
In New Hampshire, the living will is combined with your health care power of attorney. The health care agent or power of attorney is New Hampshire’s equivalent to the health care proxy in Massachusetts (which is why you may hear either term or similar terms used by your attorney if you live in another state).
Unlike Massachusetts, the New Hampshire living will is written into the code and is therefore legally binding. If you are a New Hampshire resident, then you will notice that your living will is generally divided into two sections that each have two choices.
These choices allow you to clarify your wishes with regard to end-of-life care, specify limitations, and ultimately direct your healthcare power of attorney on whether or not he/she should pull the plug.
Regardless of whether you live in a state that authorizes a living will, you should make sure your estate plan includes such language (or a personal letter, at the very least) to give your family guidance as to what your wishes are.
If you’re thinking, “My family already knows my wishes, I don’t need to worry about it,” then you should consider the possibility that although your healthcare agent may understand your wishes now and can say that they will act on those wishes while they are in a normal, calm, and unemotional environment, things can go sideways very quickly when that same person is placed in a high-stress situation and is being told by other family members conflicting thoughts.
If you haven’t experienced the trauma and weight of making that decision for your spouse or parents, then I hope you will act on this advice and get something in writing today - even if it is just a letter that you place in your estate planning binder.
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Need help with your Estate Planning?
If you would like to review or update your estate plan, then give me a call at 781 202 6368 (MA),
603 836 4166 (NH),
email jlento@perennialtrust.com, or click here to schedule your free personal consultation.
I’m always happy to help!
Joseph M. Lento, J.D.
Your Local Estate Planning Attorney
www.PerennialEstatePlanning.com
Massachusetts Office:
477 Main Street
Stoneham, MA 02180
New Hampshire Office:
91 Middle Street
Manchester, NH 03101
