The term “living will” can be misleading and confusing. Some think it is just another word for a last will and testament. A living will, however, is an expression of your desires with regard to end-of-life decisions. You might, for example, write that you do not want to be kept alive artificially if there is no chance of living without life-prolonging technology (intubation for ventilation, intravenous nutrition and or hydration, dialysis, etc.). Living wills are typically directives as to when to “let me go,” when all else has failed. Sometimes this translates to “no heroic measures.”
Massachusetts does not legally recognize living wills. We rely on a health care proxy document, in which you appoint an individual who can make medical decisions on your behalf in the event you lack the capacity to do so. Your proxy has the discretion to make decisions based on the circumstances at hand, with the advice of medical professionals, and with an understanding of your wishes. A living will can be the expression of those wishes. But if there is no living will statute in Massachusetts, what is a body to do?
You can still sign a living will, or even incorporate “living will” type language into a health care proxy document. The words themselves, the expression of desires, is not legally recognized, but is nonetheless helpful to your health care agent to guide them when confronted with difficult decisions. Such language can also help your agent if they are getting pushback from other family members who disagree with the agent’s decisions.
Similarly, there is no statute in Massachusetts that provides for an advance directive specific to dementia. The document can list certain interventions that you want to avoid in the event you suffer from dementia (treatment for illnesses such as pneumonia, antibiotics, artificial nutrition and hydration if you stop eating and drinking, etc.). Again—you can sign such a document, but it has no legal value. It is merely an expression of your wishes and guidance for your health care agent. It can be extremely helpful for your agent, family members, medical staff, and care attendants to know your intentions, whether the document itself has legal teeth or not.
Many clients ask me if they can list their desire to choose medical aid in dying (MAID), or death with dignity, in an advance directive (MAID is not yet legal here in Massachusetts), or if they can require their health care agent to relocate the client to a state that recognizes MAID. You can write whatever you’d like in a document that has no legal value, but I advise folks not to put anything in writing that might subject their health care agent to any legal scrutiny after your death. I also remind clients that a diagnosis of dementia is a specific obstacle with regard to death with dignity statutes, as all require mental capacity.
DNRs, or Do Not Resuscitate directives, are medical documents signed by you and a medical provider that are designed to dispense with discretionary decisions. You, now, of sound mind, select what level of intervention you want during a medical crisis that could occur today or in the indeterminate future. Massachusetts shifted away from DNRs to the MOLST form (Medical Orders for Life Sustaining Treatment) in the mid 2000’s. This document was historically on bright pink paper, and often on the refrigerator for EMTs to see. MA is now transitioning to the POLST (Physician’s Orders for Life Sustaining Treatment). This transition is projected to be complete by Spring of 2027. The POLST is a similar document to the MOLST, with a similarly terrible acronym, but with fewer options than the MOLST. The POLST will also be part of a “secure national registry,” and is to be consistent with the forms that are used or will be used in other states. This uniformity is designed to allow for quick access, prevent misunderstandings, and create efficiency, regardless of the location of your emergency. MOLSTs and POLSTs are typically recommended only for those with terminal illnesses or of advanced age. These are legally recognized documents, and, together with a health care proxy and any additional living will language, can be part of a thorough estate plan.