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Concerns of the Elderly and the Disabled: Living Wills and Health Care Proxies
How will decisions be made about your health care if you are unable to communicate your wishes? Will the decisions be those that you would have wanted? Who will the decision-makers be, and how will they know what to do?
These questions are frequently asked by senior citizens, their families and their health-care providers. But they can also be important to the young when face with an unexpected accident or debilitating illness.
It is important to consider what kinds of medical treatment you would want - or not want - if you should become unable to make health care decisions for yourself. You should then put those choices in writing, in a "living will" or a "health care proxy."
The Living Will
A "living will" is the popular term for a document in which you describe the kinds of medical treatment you would agree to - or not agree to - if you were unable to make or communicate those choices yourself. A living will is not "binding" in Massachusetts - we do not have a law requiring hospitals or other health care providers to follow the instructions contained in a living will. But a living will can provide valuable guidance to health care provider, or a court, that is trying to make a health care choice on your behalf.
A living will can take many forms. Often a living will expresses general principles, such as the preference that no "heroic measures" be used or that treatment should be with held if it would artificially prolong life. Other people list the specific kinds of treatment they would accept or reject, such as renal dialysis, chemotherapy, " do not resuscitate" orders, or artificial nutrition and hydration (also known as "tube feeding").
If you decide to write a living will, be as clear and specific as you can about your preferences for medical care, and be sure that it expresses your wishes accurately and completely.
The Health Care Proxy
Under Massachusetts law, if you are competent and at least 18 years old, you may appoint another person - called your "agent" - to make decisions about your health care if you should become unable to do so. The document in which you name this person is called a "health care proxy."
The person you choose as your health care agent will be called upon to make decisions about your medical care only if your health care provider determines that you are unable to make or communicate such choices for yourself - if, for example, you were unconscious. Your agent is required to make decisions that are consistent with your religious or moral beliefs, including any instructions you may have put in a living will. If your wishes are not clear, or if they fail to address the particular circumstance, your agent may exercise independent judgment about your medical treatment, taking into account your best interests. If you wish, you may write your health care proxy to put limits on your agent's authority, or to list your preferences about specific kinds of treatment.
Which Should You Choose?
One advantage of the health car proxy is that your agent can make a decision based on the specific situation at the moment, whether or not you anticipated that situation when you signed the health care proxy. Even in the most carefully drawn living will, it is not possible to anticipate all the conditions you might face and all the choices that might be available. Another advantage of the health car proxy is that your health care provider must honor the decisions of your agent, while the instructions contained in a living will are not legally binding.
However, the health care agent has a monumentally important responsibility: to make medical decisions for you if you are unable to do so. Such decisions could include whether to sustain your life support. For this reason, you should think very carefully about whom to choose as your health care agent, and should discuss your feelings about your medical preferences with this person before a problem arises. If you do not trust another person to make medical decisions on your behalf, a health care proxy may not be for you.
Keep in mind that the information given here is very general. There are specific requirements and facts about both living wills and health care proxies that should be considered before choosing either one. A lawyer can discuss these considerations with you, and help you decide whether you need a living will, health care proxy, or combination of both. A lawyer can then help you write your document to ensure that it meets your legal and medical needs.
How to Get Help
If you need a lawyer and don't know how to find one, you may contact the Massachusetts Bar Association's Lawyer Referral Service. The number in Boston is (617) 654-0400 or TDD (617) 338-0585. Outside Boston you may call toll-free 1-800-392-6164. There is no charge to call the Lawyer Referral Service, and your first half-hour consultation with an LRS attorney is only $25.
The Massachusetts Bar Association also offers free help through its Dial-a-Lawyer call-in program. On the first Wednesday of each month, from 5:30 to 7:30 p.m., volunteer lawyers are available to answer your basic legal questions by phone. Dial-a-Lawyer may be reached at (617) 338-0610.
Masslawhelp is a public service of the Massachusetts Bar Association.Posted on Apr 27, 2000 |
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