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Thursday, April 5, 2018

Advance Directives, Living Wills, and Health Care Proxies

One question that comes up a lot when talking with clients about estate planning is "what is a Living Will and do I need one?"  The answer depends on what state you live in.

First, it is important to understand exactly what a Living Will is.  A Living Will has nothing to do with your Last Will and Testament.  A Living Will is a legal document that allows a person to list medical treatments that they would or would not want if they become terimnally ill are become unable to make their own health care decisions.  It is a type of Advance Directive, that is recognized in most states.

Massachusetts is one of only three states that recognizes Health Care Proxies but does not recognize Living Wills.  A Health Care Proxy is a legal document that designates another person (most often of your own choosing) to make medical decisions should you be unable to do so.  Massachusetts General Laws c. 201D allows a person to appoint his or her own Health Care Proxy (called an "Agent").  Hospitals and medical providers are bound to follow your Agent's decisions as if they were the individual's own decisions. 

While Massachusetts does not recognize Living Wills, an individual can still list his or her treatment wishes in the Health Care Proxy so that his or her Agent will know that individuals preferences and treatment wishes.  It is important to be speak openly and honestly with a Health Care Agent to minimize stress on family and the Agent.

There are certain requirements that are necessary to make a Health Care Proxy valid, so it is important to discuss your estate planning needs with an estate planning attorney.  Once your Health Care Proxy is executed, a copy should be given to your physician, your agent, your attorney, and any alternate agents.

Health Care Proxies are revocable if your condition (or your relationship with your Agent) ever changes.  Again it is important to consult an estate planning attorney to make sure that a Health Care Proxy has been properly revoked.

In the State of Rhode Island, Living Wills are valid under the Rights of the Terimally Ill Act, which allows individuals to instruct their physician(s) to withhold or withdraw life-sustaining procedures.  In addition, Rhode Island recognizes health care proxies (which are called Durable Power of Attorney for Health Care).  Again, to execute a valid Living Will, a person must meet certain legal requirements so it is important to consult with an estate planning attorney.

If you have any questions or need any Advance Directive documents, please contact the Law Offices of Samuel S. Reidy. 

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