Massachusetts Living Will Requirements

Introduction

Key Things to Know

1. 1

   In Massachusetts, what people commonly call a living will is officially referred to as a Personal Directive, a written statement of the medical treatments you want or want withheld if you cannot speak for yourself; unlike a Health Care Proxy, it does not name who decides for you.

2. 2

   A living will is not a last will and testament. A living will addresses medical care while you are alive but unable to communicate; a last will and testament governs who inherits your property after you die. Most people preparing one eventually want the other too.

3. 3

   Massachusetts has no living will statute. The only legally binding advance directive under General Laws Chapter 201D is the Health Care Proxy, which names an agent to make health care decisions for you.

4. 4

   A Massachusetts living will is not binding on your doctors by itself. It carries the most legal weight when written into your Health Care Proxy as a limitation on your agent's authority, or kept alongside it as evidence of your wishes.

5. 5

   Two Massachusetts Supreme Judicial Court cases, Superintendent of Belchertown State School v. Saikewicz (1977) and Brophy v. New England Sinai Hospital, Inc. (1986), confirm that courts give real weight to a person's own prior stated wishes, including about artificial nutrition and hydration, under the substituted judgment doctrine, even without a statute or a proxy in place.

6. 6

   A stand alone statement of your own treatment wishes needs no witnesses or notary at all under Massachusetts law. It only picks up the mandatory two-witness signature once you attach it to your Health Care Proxy as a Section 4 limitation.

7. 7

   Massachusetts law contains no pregnancy clause anywhere in Chapter 201D. Nothing in the statute changes, suspends, or voids a proxy or an attached statement of wishes because of pregnancy.

8. 8

   Massachusetts has no state-run registry for a written statement of wishes or for a Health Care Proxy. Keep your statement with the same people who need your Health Care Proxy: your agent, your physician, and your family.

Massachusetts Requirements for Living Will

• Health Care Proxy Designation (Massachusetts General Laws Chapter 201D, Section 2)

  Massachusetts recognizes the Health Care Proxy, not a living will, as its only legally binding advance directive. This designates a trusted adult to make health care decisions on your behalf if you cannot. It must be signed before two adult witnesses; the only witness disqualification in the statute is the person you have named as your agent.

• Alternate Health Care Proxy (Massachusetts General Laws Chapter 201D, Section 2)

  You may designate an alternate agent to serve if your primary health care agent is unavailable, unwilling, or unable to act, or becomes disqualified under the chapter's other requirements. This provides continuity in decision making authority.

• Effective Date and Trigger (Massachusetts General Laws Chapter 201D, Section 6)

  Your agent's authority begins only after your attending physician determines, using accepted medical standards and in writing, that you lack the capacity to make or communicate health care decisions. This is the trigger for your agent's authority under the Health Care Proxy. Massachusetts has no separate trigger condition list for a living will, because it has no living will statute.

• Statement of Treatment Wishes (Massachusetts General Laws Chapter 201D, Sections 4 and 5)

  Massachusetts has no independent living will statute, so a statement of treatment wishes is not binding by itself. It carries legal weight two ways: written into your Health Care Proxy as a Section 4 limitation on your agent's authority, or as evidence a court may honor under the substituted judgment doctrine established in Superintendent of Belchertown State School v. Saikewicz (1977) and Brophy v. New England Sinai Hospital, Inc. (1986), which specifically applied the doctrine to artificial nutrition and hydration.

• Pain Alleviation and Comfort Care (Massachusetts General Laws Chapter 201D, Section 13)

  Chapter 201D, Section 13 lets a physician provide comfort care or pain alleviation, including sedatives, pain killing drugs, non-artificial oral feeding, suction, and hygienic care, even if these measures could hasten death. The federal Patient Self-Determination Act separately requires facilities to inform patients of their advance directive rights but does not itself authorize specific pain management measures.

• Organ and Tissue Donation (Massachusetts General Laws Chapter 113A)

  Massachusetts's Uniform Anatomical Gift Act, Chapter 113A, lets you authorize organ and tissue donation, including through a statement or symbol on your driver's license or a donor registry entry, separate from your Health Care Proxy or statement of wishes.

• Personal Values Statement (Religious or Cultural Beliefs)

  You may include your religious or cultural beliefs as part of the wishes your health care agent must consider under Chapter 201D, Section 5's requirement that an agent act in accordance with your known wishes, including your religious and moral beliefs.

• HIPAA Authorization (Health Insurance Portability and Accountability Act of 1996)

  Federal HIPAA regulations let you authorize your health care agent and any alternates to receive your protected health information so they can make informed decisions once your Health Care Proxy is in effect.

• Revocation Procedures (Massachusetts General Laws Chapter 201D, Section 7)

  You may revoke your Health Care Proxy, and any statement of wishes attached to it, at any time by notifying your agent or a health care provider orally or in writing, or by any other act communicating your intent to revoke. Once informed, physicians must record the revocation and notify relevant parties.

• Pregnancy (Massachusetts General Laws Chapter 201D)

  Massachusetts law contains no pregnancy exclusion clause. Your Health Care Proxy and any attached statement of wishes keep full effect regardless of pregnancy status.

• Out-of-State Recognition (Massachusetts General Laws Chapter 201D, Section 11)

  A health care proxy or similar instrument validly executed in another state or jurisdiction under that jurisdiction's law is enforceable in Massachusetts, so long as honoring it would not require violating the physician and facility refusal provisions of Sections 14 and 15.

• Guardianship Provisions (Massachusetts General Laws Chapter 190B, Article V)

  You may nominate your health care agent as your guardian of the person in the event a separate court guardianship proceeding becomes necessary, to help keep decision making consistent. Guardianship itself is a separate court process from the Health Care Proxy.

• Notification of Relevant Parties

  Massachusetts law does not impose a general requirement that you list who must be notified when your Health Care Proxy becomes effective. The only related statutory duty is narrower: under Section 7, once a physician or agent learns of a revocation, the physician must record it and notify relevant parties. Naming people to notify in advance is good practice, not a Chapter 201D mandate.

• Witness Attestation (Massachusetts General Laws Chapter 201D, Section 2)

  Two adult witnesses must attest in writing that you appeared to be at least eighteen, of sound mind, and under no constraint or undue influence when you signed. The only witness disqualification stated in the statute is your named health care agent. Massachusetts does not disqualify witnesses for being related to you by blood or marriage, or for being named in your will.

• No Independent Statutory Living Will; Substituted Judgment Doctrine (Saikewicz, 1977; Brophy, 1986)

  Massachusetts has no living will statute of any kind, combined or separate. The Commonwealth's own legal guidance states that a living will is not legally binding on your doctors by itself. Its real legal weight comes from two Supreme Judicial Court cases applying the substituted judgment doctrine: Superintendent of Belchertown State School v. Saikewicz (1977) established that courts will honor the treatment choice an incapacitated person would have made, and Brophy v. New England Sinai Hospital, Inc. (1986) applied that doctrine specifically to withdrawing artificial nutrition and hydration based on a patient's own prior statements.