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Living Will

Living wills inform others what medical treatment you desire if you become permanently unconscious or terminally ill and are unable to make or communicate decisions regarding treatment. All but three states - Massachusetts, Michigan and New York-have passed living will laws to protect a patient's right to refuse medical treatment. In the majority of states, a living will is a legally enforceable document and can insure that a doctor who abides by a patient's wishes will not incur any liability.Click here for a free living will form for use in Massachusetts.

Even in states without living will laws this document is useful to a judge trying to decide what an unconscious patient would want.

What is a Living Will?

A Living Will is a legal document in which you, as an adult who is now competent, can state your wishes regarding your future health care. It is used by those persons who want to express their feelings about the withholding or the withdrawal of life-sustaining treatment that prolongs the process of dying. Many persons want to make clear their objection to unwanted medical measures in advance; others wish to state that they favor measures to have all available kinds of life-sustaining treatment administered.

The Living Will is intended to anticipate the situation wherein you might be in an incurable or an irreversible mental or physical condition, with no reasonable expectation of recovery. Your instructions are usually intended to apply if you are in any of the following states:

(a) in a terminal condition;
(b) permanent unconsciousness (persistent
     vegetative state) or
(c) conscious but with irreversible brain
     damage and will never regain the ability
     to make decisions and/or express your

The Living Will can also be used to provide for any expression whatsoever of your wishes as to health care and treatment. A Living Will is sometimes called an Advance Directive for Health Care, or a Health Care Declaration.
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Living Wills: Legal authority

The common law has long recognized that a competent adult has the right to determine what will be done to the person or body, including the right to accept or decline medical treatment. This is known as the right of self-determination. Included in this right is the right to accept or decline medical treatment. Courts have held that these expressed wishes of a competent adult should be honored even when he or she is no longer competent. The Supreme Court of the United States stated in 1990 that a competent person has a liberty interest under the due process clause of the constitution in refusing medical treatment. back to top

How specific should you be in your Living Will?

Your Living Will should express your general wishes; but it should also be as specific as you can express. If you have definite desires or preferences as to medical treatment under certain circumstances, it is important to spell them out both in the document itself and in discussions with your health care agent and physician. This corroboration of written and oral evidence helps ensure that your wishes and values will be respected when you can no longer make such judgments on your own behalf. Some examples of specific matters that you should cover are your wishes concerning:

(a) artificial nutrition and hydration
(b) cardiac resuscitation,
(c) mechanical respiration,
(d) antibiotics,
(e) pain medicine, etc.

It is especially important to be specific about artificial nutrition and hydration (tube feeding). You may also want to authorize the issuance of a DNR (Do Not Resuscitate) Order by your physician. Avoid using terms such as "heroic measures" or "extraordinary treatments." back to top

Should you execute both a Living Will and a Health Care Proxy?

Yes. The Living Will is your own expression of your attitudes and wishes about your health care. This instrument is especially important if you do not have a person to appoint as your Health Care Proxy, or if the person you have appointed is not available. The Health Care Proxy is important because it names your selection of the person who is to make decisions on your behalf if you cannot do so. You will want to have your health care agent communicate the views expressed in the Living Will to your physician to be sure the physician understands your wishes.

In Massachusetts, the Health Care Proxy is statutorily recognized, while the living will is not. back to top

Will other documents be helpful to insure your wishes are carried out?

Yes. You should consider having a Durable Power of Attorney so that your agent has power to provide funding for medical care and treatment. The agent appointed may, but need not be, the person who is the Health Care Agent in your Proxy. Your Health Care Proxy should be separate from your Power of Attorney. Call us to prepare these important documents.back to top





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Hamill & Gray, LLP
36 Miller Stile Rd.
Quincy, MA. 02169
Attorney Hamill


Hamill & Gray
36 Miller Stile Rd.
Quincy, MA. 02169

Massachusetts Estate Planning Attorney

MA Wills

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