Living Wills

living will (not to be confused with a living trust) is a document in which you tell your family and loved ones your wishes about what types of medical treatment you want to receive to prolong your life if you are no  longer able to make those decisions for yourself.  Even if you have created a health care proxy, naming a family member (your health care agent) to make your medical decisions for you when you are incapacitated, it is still a good idea also to create a living will.  Even though it is best practice is to discuss with your chosen health care agent what life-prolonging procedures you want to receive, these are not pleasant conversations, so we often postpone them until it is too late.  In that case, your health care agent can refer to your living will as evidence of your wishes when making end-of-life decisions for you.

What is in a living will?

A living will describes in detail particular types of life-prolonging treatments, and specifies for each procedure whether you want — or do not want — to receive it if you are terminally ill and/or in a persistent vegetative state.  For example, you can specify in your living will a “DO NOT RESUSCITATE” if you do not want any life-prolonging treatments.  Other procedures include artificial respiration and feeding.

When does my living will take effect?

Like your health care proxy, a living will does not become effective until you are declared are incapacitated, that is, no longer able to make and speak the decisions for yourself.  No matter how ill, if you remain conscious and coherent, the living will will not be triggered.  Your physician would have to certify that you are permanently unconscious and terminally ill and/or in a persistent vegetative state. Basically, a living will is triggered when your doctor concludes that there is no hope of you regaining consciousness.

Is my living will binding on my health care agent?

In Massachusetts, however, a “living will” is not recognized by statute, whereas a healthcare proxy is legally binding.   Thus, your physicians may disregard your living will if it contradicts the instructions given to them by the person that you named as your healthcare agent.  Still, living wills are useful for Massachusetts residents because they may confirm or corroborate your healthcare agent’s decision concerning particular medical procedures.  In Rhode Island, “living wills” are recognized by statute as binding legal documents, provided they comply with all the rules set out in the statute.  Rhode Island residents with living wills nonetheless need to name a person as their healthcare proxy in case a medical decision not covered in their living will has to be made.

What do I do once a sign a living will?

Like all estate planning documents, a living will likely will do you no good if you tell no one you have one.  If you have appointed a health care agent (which is highly recommended), you should let him or her know where you store the living will.   You may also want to give a copy to your physician, or at least discuss the substance of your living will with your physician.

At Deschene Law Office, we highly recommend to our clients a living will package called Five Wishes.  We like it because it sets forth the issues in plain English, and carefully guides you through and explains the various medical procedures.  Once you complete the form, preferably in a sit-down discussion with your health care agent, we will arrange to have it executed and notarized at the time you sign your other estate planning documents.

If you would like to create a living will, call us at 508-316-3853.