Massachusetts Has No Living Will. The Health Care Proxy Is What Works.

Almost every state has a living will statute — a law that gives a signed declaration about end-of-life treatment direct legal force, so that a physician presented with it is bound by what it says. Massachusetts does not. The legislature has never enacted one.

This surprises people, including people who have signed a living will at a hospital, downloaded one from a national website, or brought one with them from another state. The document is not worthless in Massachusetts — it is evidence of what the person wanted, and evidence matters — but it does not operate as a binding directive the way it would in Idaho, California or Texas.

What Massachusetts has instead is the health care proxy, and it is the document that actually does the work.

The health care proxy

Chapter 201D of the General Laws allows an adult to appoint a health care agent to make medical decisions when the person is no longer able to make them. The proxy is straightforward to execute: signed by the principal in the presence of two adult witnesses, who also sign.

The agent’s authority begins when the attending physician determines in writing that the patient lacks capacity to make health care decisions. It is not a general grant that operates from the moment of signing; it is triggered by that determination, and it ends if capacity returns.

Once it is triggered, the agent’s authority is broad. They stand in the patient’s shoes, with access to the medical information they need, and they decide — including about treatment that sustains life. The agent is directed to act on what the patient would have wanted, which is why the conversation behind the document matters as much as the paper.

Why the conversation is the document

Because Massachusetts has no living will statute, the proxy does not typically contain a detailed list of treatments to accept or refuse. Some people add written instructions and that is worth doing; those instructions will be taken into account as evidence of intent, and a thoughtful agent will follow them. But the legal authority sits with the agent, not with the page.

That makes the choice of agent the most consequential decision in the document. The right person is not necessarily the eldest child or the most devoted one. It is the person who will be reachable, who can hear a physician explain a prognosis without falling apart, and who is capable of saying no to further intervention if that is what the patient would have wanted — including in a room where other family members want everything done.

An agent who has never been told what the person wants is being asked to guess under pressure, in a hospital corridor, at three in the morning. Twenty minutes of conversation while everyone is well is worth more than any form.

MOLST is a different document, for a different stage

Massachusetts uses a Medical Order for Life-Sustaining Treatment form, and it is frequently confused with the proxy. They do different things at different times.

A proxy appoints a decision-maker in advance, for anyone, whether healthy or not. MOLST is a signed medical order, completed with a clinician, for a person with a serious advancing illness. It records decisions about specific interventions — resuscitation, intubation, artificial nutrition — in a form that travels with the patient and that emergency personnel will follow.

A healthy fifty-year-old should have a proxy and does not need a MOLST. Someone with advanced illness should usually have both, and they should say the same thing.

What happens without a proxy

Massachusetts does not have a broad statutory hierarchy naming who decides when there is no proxy — the kind of default surrogate list that many states provide. In practice clinicians work with the family that is present, and most decisions get made without a legal proceeding. But where the family disagrees, or where a treating institution is unwilling to act on an informal consensus, the route is a court proceeding.

Massachusetts law also requires court involvement for certain decisions even where an agent exists, most notably the administration of antipsychotic medication, which is handled through a substituted judgment determination rather than by the agent alone. That is a protection for the patient, and it is worth knowing about before it arrives as a surprise.

The general point stands: the absence of a proxy converts a medical decision into a legal one, at the worst possible moment and at the family’s expense.

The financial side is a separate document again

A health care proxy does not authorise anyone to pay a bill, sign an admission agreement with a financial obligation, sell a house, or file a MassHealth application. That requires a durable power of attorney, and the two should be signed together.

Families frequently discover the gap at the point a parent enters a facility: the agent under the proxy can consent to treatment but cannot deal with the money, and nobody has authority over the assets that will pay for the care. Without both documents, the alternative is a guardianship for the person and a conservatorship for the property — two proceedings, both supervised, both paid for out of the estate.

The Massachusetts elder law page covers incapacity documents and long-term care planning together.

Where the documents should actually live

A proxy that nobody can find is a proxy that does not exist. The original should go to the agent, a copy to the alternate, a copy to the primary care practice for the medical record, and a copy to any hospital or facility involved in ongoing care. Keeping the only copy in a safe deposit box is a recurring and entirely avoidable problem — the box is closed at the weekend, and the person who could authorise access is the patient.

It is also worth revisiting the document when life changes rather than treating it as permanent. A divorce, the death or illness of the named agent, a move to Massachusetts from another state, a falling-out, or a diagnosis that makes the questions concrete are all reasons to re-read it. Re-executing a proxy takes a few minutes and costs almost nothing; discovering at the hospital that the named agent is an ex-spouse costs a great deal more.

Frequently Asked Questions

I signed a living will. Is it useless in Massachusetts?

Not useless, but not binding either. Massachusetts has no living will statute, so the document is evidence of what you wanted rather than a directive a physician must follow. It is a useful companion to a health care proxy and a poor substitute for one.

Can I name two agents to act together?

The statute contemplates one agent at a time, with an alternate who serves if the first cannot. That is a feature rather than a limitation — medical decisions frequently have to be made in minutes, and requiring two people to agree is how a hospital ends up waiting.

Is a proxy from another state valid here?

Massachusetts generally gives effect to a health care directive validly executed elsewhere, and an out-of-state document is far better than nothing. In practice a Massachusetts form on a Massachusetts hospital’s desk meets less resistance, and a move here is a sensible moment to re-execute.

Talk it through

If the health care documents in your file came from another state, or a parent has an advancing diagnosis and nothing has been signed, the Massachusetts contact page has the direct line. There is no charge for the first conversation.