End of Life Decision Making May 19, 2016 Massachusetts Continuing Legal Education Kenneth J. Vacovec, Esq. Vacovec, Mayotte & Singer LLP 255 Washington Street, Suite 340 Newton, MA 02458 USA KVacovec@vacovec.com T: (617) 964-0500 F: (617) 969-2002

Massachusetts Legislation “An Act Providing for the Execution of Health Care Proxies by Individuals” December 18, 1990 15 Years after California first enacted a “Living Will” statute By 1992, every State and the District of Columbia had a Living Will or Health Care Proxy statute.

Why a Need for health care proxies or a living will? Medical technologies in the 1950’s and 1960’s were now able to prolong lives by artificial means of nutrition and hydration. Before 1930, most people in the United States died in their own homes, surrounded by family, and comforted by clergy, neighbors, and doctors making house calls. By 1977 seventy percent of deaths occurred in hospitals.

The Judicial background NEW JERSEY In Re Quinlan (1976) SJC Decisions Belchertown State School v. Saikewicz (1977) Substituted Judgment Doctrine Brophy v. New England Sinai Hospital Inc. (1986) United States Supreme Court Cruzan v Director, Missouri Department of Health (1990)

The legislative response in 1990 Living Wills Generally included vague terms Could not cover all medical situations Health Care Proxy Separated from the roll of an Attorney-In-Fact Appoints one person to make health care decisions Based upon that persons relationship to the principal With knowledge of the principals wishes, religious beliefs, and moral decisions

Current Massachusetts health care proxy M.G.L. 201D – (2010) A competent adult (principal) appoints another person (Health Care Agent) by executing a Health Care Proxy. Authority to make health care decisions on the principals behalf. After the determination the principal lacks the capacity to Make or Communicate health care decisions

Continued… The determination is made: By the attending physician In writing According to accepted standards of medical judgment Entered into the principals permanent medical record

HARVARD MEDICAL DIRECTIVE Created by Dr. Ezekiel Emanuel and Dr. Linda Emanuel Emanuel.  More specific and extensive than previous living wills predecessors. Provides six case scenarios and commonly considered medical procedures associated with each scenario. Allows individuals to decide in advance which treatments are wanted or not wanted under those circumstances.

Medical orders for life sustaining treatment (MOLST) MOLST authorized under Chapter 385, Section 43 of the Acts of 2008 Standardized Form Translates a patient’s preferences for life sustaining treatments Into valid medical orders To be honored by all health care professionals A new standard practice expanded statewide in April, 2012 by the Executive Office of Health and Human Services. Endorsed by all major medical groups.