By Elizabeth A. Caruso, Esq.
This is a myth!
A living will is a completely separate document from a last will and testament or a health care proxy. Read on and I will explain the differences between the documents.
A last will and testament, or a will, distributes assets that are only in the name of the person who died. Any asset that is owned with another person or has a beneficiary designation does not pass through a will. A will is also your opportunity to name a guardian for minor children or disabled adults.
A health care proxy nominates a trusted person to make health care decisions for someone else while they are incapacitated. The incapacity can be temporary or permanent.
A living will is a document that lays out someone’s health care choices and preferences. It is a document that is used to guide the nominated health care proxy in reaching their health care decisions for the incapacitated person who nominated them.
As you can see, these are three distinct estate planning documents, but there is an even larger difference among them. Living wills are not recognized by law in Massachusetts. When you create both a will and a health care proxy in Massachusetts, in order for the documents to be legally enforceable, the must be created according to Massachusetts law. There is no law in Massachusetts regarding the creation of living wills, and they are not recognized as legally binding documents. They can be great guidance to a health care proxy regarding the state of mind or important choices for the incapacitated person, but they cannot be relied upon.
An elder law attorney can help you to create an estate plan that caters to your needs and is compliant with Massachusetts laws. Meeting with an elder law attorney can ensure you have all the important documents that you need.
About the Author: Elizabeth A. Caruso, Esq. is an attorney at Legacy Legal Planning, LLC, in Norwell. She has been practicing estate planning, probate, and elder law on the South Shore for more than a decade. If this article has sparked questions for you, please feel free to reach out via phone 781-971-5900 or email elizabeth@legacylegalplanning.com to schedule a time to discuss your unique situation.
