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Value of Living Wills in Massachusetts

Susan A. Mielnikowski

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A column in the Springfield (Mass.) Republican called “Ask the Experts” addresses readers’ questions on legal topics.

I was surprised to see today’s response to a reader from Susan A. Mielnikowski, a member of the Massachusetts Bar Association’s Probate Law and Taxation Law sections, and an attorney with the Springfield-based firm of Cooley, Shrair, Mielnikowski.

To the extent you have completed a living will, your health-care proxy can certainly refer to your living will or advanced directive as a guide in making the proxy’s own determination. However, it is important to understand that, in Massachusetts, your agent will have the authority to make the decision in the moment.

Any living will or advanced directive you may have completed will only be for reference by your agent, and is not legally binding or a limitation on their authority.

Mielnikowski understates the value of a living will.  Under the controlling Massachusetts statute, a healthcare proxy or agent “shall make health care decisions . . . in accordance with the agent’s assessment of the principal’s wishes.”

Where its terms apply to the clinical circumstances at hand, a living will is both legally binding and a limitation in the agent’s authority.  Indeed, Massachusetts proxies like Carol Carvitt (here too) have learned that there really are limitations to the scope of their decision making authority.