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Arlanson Law Offices
Five Assinippi Avenue
P.O. Box 111
Hanover, MA 02339
(781) 659-5900


The So-Called “Living Will”

Due to the interest in the Terri Schiavo case which was publicized throughout our nation, there seems to be increasing interest in the so-called "Living Will". Roughly defined, a "Living Will" is a person's written directive for one's medical care and treatment stating what care and treatment an individual would permit or would like withdrawn or withheld under certain circumstances, (those circumstances usually being that the person is in a vegetative state with no hope of recovery and/or with near-end terminal illness). A "Living Will" should not be confused with a Last Will and Testament, which is the legal expression or declaration of a person's wishes as to the disposition of one's property to take effect after the person's death. A "Living Will" is focused on medical care and treatment while a person is living; a regular Will addresses disposition of assets after one's death.

A discussion of "Living Wills" is one which many persons would prefer not to undertake because it is an extremely personal matter dealing with the advent of one's extreme disability as well as some type of terminal medical condition. However, with medical technology advancing so rapidly, persons who would have, in years past, otherwise died, now may have their lives prolonged by medical procedures and treatment for long periods of time. However, prolonged "life" can often mean a person is physically "alive" but unable to converse with family and friends, and may be perpetually unconscious. This can be brought on by a serious accident, a stroke or any combination of medical diseases, especially those afflicting older persons.

Most states currently have so-called "Right to Die" statutes which would provide that the so-called Living Will, if executed when a person is competent to do so, would be binding upon a medical facility to withdraw life-sustaining treatment. Massachusetts is currently not one of the states which has such a statute (but note the Health Care Proxy statute).

However, just because there is no current local statute, that does not mean a person who lives in Massachusetts should not consider executing a Living Will. A person may not be in Massachusetts when a medical condition exists to which the Living Will would operate. Further, Massachusetts may subsequently pass legislation to provide for a Living Will. Under circumstances where a family would seek to terminate medical treatment, Court proceedings may be required to try to determine a person's wishes and enter an appropriate Court order. The best way in which to express one's wishes in this regard is to make a written statement, while one is competent to do so, detailing one's wishes. The issue, of course, for doctors and medical facilities is the ethical dilemma of doing all possible to sustain life which may be contrary to one's expressed wishes. There is also potential liability for withdrawing life-sustaining treatment.

As a result, medical facilities must tread very carefully in this area to make certain they are proceeding with all due caution and diligence, for to do otherwise would be at the facility's extreme legal peril and contrary to medical ethics.

Another very important reason to consider a Living Will in Massachusetts, in spite of the fact that there is no statute actually recognizing this, is that the Massachusetts Courts do recognize the so-called "substituted judgment doctrine" in which it seeks to determine what the wishes of the incapacitated person would be, and in such proceedings, the Court could attach great weight to a written declaration of one's wishes. The Living Will also makes the decision to request withdrawal or termination of treatment much easier for family members, lessening a feeling of guilt in requesting the withholding or withdrawal of medical treatment.

The law in this area is in a state of development and change, trying to balance the interests and wishes of the disabled person with the state interest of preservation of human life. If a person is truly interested in fully addressing this subject, such person should, while competent to do so, seek able advice and have the proper documentation drafted to clearly state one's desires. The "Living Will" is one other matter that one may wish to consider when putting together an overall Estate plan.

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