Health Care Proxy vs. Living Will in Massachusetts

The Confusion Is Completely Understandable

People use "living will" and "Health Care Proxy" interchangeably all the time. They are not the same thing. In Massachusetts, only one of them gives someone the legal authority to speak for you when you're unconscious or unable to communicate. The other one carries real weight as a statement of your values, but it won't compel a doctor or hospital to do anything.

Let's sort this out.

What a Massachusetts Health Care Proxy Actually Is

A Health Care Proxy is a legal document created under Massachusetts General Laws Chapter 201D. It does one specific thing: it names a person, called your health care agent, to make medical decisions on your behalf when your attending physician determines you can no longer make or communicate those decisions yourself.

That agent can authorize or refuse treatments, ask for a second opinion, review your medical records, and direct end-of-life care. The authority is broad, and that's intentional. You want someone who can adapt to whatever situation actually arises, not someone reading from a script.

Say Sarah is in her early 50s and lives in Beverly. She names her husband David as her health care agent. If Sarah is in a serious car accident on Route 128 and ends up at Beverly Hospital on an emergency basis, David can talk directly to her doctors, consent to surgery, and make decisions about life support. He has legal standing to do that because Sarah executed a valid proxy.

What a Living Will Is (and Isn't) in Massachusetts

A living will is a written document where you describe, in advance, the kinds of medical treatments you would or wouldn't want in specific circumstances. Common examples include refusing mechanical ventilation or artificial nutrition if you're in a persistent vegetative state.

Here's the catch: Massachusetts has no living will statute. There is no state law that requires a hospital or physician to follow a living will the way Chapter 201D requires them to honor a Health Care Proxy. A living will can inform your agent's decisions and serve as strong evidence of your wishes in a court proceeding, but it does not create enforceable rights on its own.

That said, a well-written living will is still worth having. It tells your agent, and your family, exactly what you would want. David doesn't have to guess what Sarah would decide. She already told him in writing.

What About a POLST Form?

A POLST (Physician Orders for Life-Sustaining Treatment) is something else entirely. It is a medical order, signed by a physician, that travels with a patient and gives immediate direction to emergency responders and hospital staff. It is typically used for people who are seriously ill or elderly and need those instructions to be actionable right now.

A POLST is not a substitute for a Health Care Proxy. They serve different purposes and you may need both.

The Witness Rule

Massachusetts requires that all Health Care Proxies are witnessed by two independent adults. Often times this trips up people who are looking to have a Proxy put together in an emergency basis. I have seen firsthand the attempts to get someone in a hospital bed to sign, and it is an awful pickle to be in to find two witnesses nearby, as hospital staff will almost always refuse, concerned with liability. The Witness Rule in the law requires two witnesses, the Witness Rule to ME is a different lesson, it is a rule that says set it up now, when nothing has gone wrong, rather than wait until it does.

Making Sure Salem Hospital or Beverly Hospital Will Honor It

Both Salem Hospital (part of MassGeneral Brigham) and Beverly Hospital (part of Beth Israel Lahey Health) maintain advance directive records and will ask for a copy on admission. Do not just keep your proxy in a home filing cabinet.

Give a copy to your health care agent. Give a copy to your primary care physician and ask that it be added to your electronic health record. If you are being admitted for a scheduled procedure, bring a copy with you. Some people also keep a card in their wallet noting that a proxy exists and where it can be found.

Mark, a retired teacher from Gloucester, had a Health Care Proxy that his daughter Lisa knew nothing about until he was hospitalized. She found the document at his house three hours into his admission. Three hours matters. Make sure your agent has a copy before there is ever an emergency.

Your Agent Needs to Know Your Values, Not Just Your Signature

The most important thing your health care agent can have is not a piece of paper. It is a real conversation with you about what quality of life means to you, what you fear most, and what you would and would not want in various scenarios. The proxy gives them the authority to act on your behalf. That conversation gives them direction.

Put both in place. One without the other leaves your family in a hard spot.