A Living Will Isn’t Enough in Massachusetts by Sherwood Guernsey, Esq.

The Schiavo case, and other recent events, have touched the nation in a very personal and important way.

The question is: What can be done to avoid the agony families face in these difficult situations?

These cases occur simply because people do not have a written health care directive saying what they want, in the event they could only be kept alive by artificial means.

In fact, most people (75% - 80%) do not have such directives. Why? No one likes to think about death and dying, and we all think, "This couldn't happen to me." Of course, what ‘couldn't happen’ often does, and then the stress on the family is unbearable.

Health Care Proxy

In many states, the way to avoid this stress, and innumerable court challenges, is to execute what is called a Living Will. In Massachusetts, however, we have no statute authorizing a Living Will. Instead, Massachusetts provides for a Health Care Proxy ("HCP").

What is the difference?

In a Living Will, you actually list the specific treatments that you do, or do not, authorize a doctor to perform. In an HCP, you do not list specific treatments, but rather, appoint another person, called the proxy or agent (usually a spouse or other family member) to make those decisions after consultation with the maker's physician.

Both documents only take effect when you are not competent to make your own decisions; competency is determined by a physician. Both documents have specific signing and witnessing requirements.

Massachusetts chose to enact the HCP, instead of the Living Will, because the legislature believed the HCP would provide for more fully considered, more fully informed, decisions. The HCP allows a person who knows you well to make the decision at the time when the need arises, not years before, and requires consultation with the maker's physician. Your proxy then can apply the facts and circumstances at the time of the need, to the wishes and beliefs of the maker.

It is important to know that Massachusetts will recognize a Living Will validly executed from a state that allows Living Wills.

For the HCP to work well, it is clear that the key ingredient is for you to communicate very clearly to your proxy, your wishes, beliefs and desires, so the proxy can make an informed decision on your behalf.

You Need More Than a Health Care Proxy

To protect yourself and your family, however, you will need more than the HCP. The HCP only authorizes an agent to make health care decisions, not financial decisions, such as terminating a lease, paying bills, or selling a house.

To protect yourself with regard to financial decision-making, you will need to have a Durable Power of Attorney, under which you appoint someone to make your financial decisions, when and if you should become incompetent, and unable to make your own decisions.

You will also need a clear document authorizing your Health Care Proxy to secure your doctor and hospital records. This document is crucial in light of the decisions of many health care institutions, interpreting HIPPA, to require a separate written authorization to allow such access to a patient's records.

Finally, you should have a Will and other estate planning documents to ensure that after death you avoid family tensions and stress by stating directly how the property you own at the date of your death is to be distributed.

An Estate Plan is the greatest gift you can give your family and heirs. Terri Schiavo was only 26 years old when she was stricken. You're never too young to legally document your wishes.

Sherwood Guernsey, has over 25 years of experience practicing law, with a focus on business transactions, real estate and estate planning. For business enterprises, he has a great deal of experience with initial business structuring, debt financing, venture capital, compensation planning, employment issues, contract negotiation and all other areas of business development. Mr. Guernsey is a cum laude graduate of Dartmouth College and received his J.D. from the Antioch School of Law in Washington, D.C.