In addition to maintaining up-to-date estate-planning documents, individuals with serious advanced illnesses or specific wishes regarding health care decisions should consider executing a medical orders for life-sustaining treatment (MOLST) form.
A MOLST form is a medical order signed by both a clinician and patient that specifies the patient’s medical decisions regarding life-sustaining or end-of-life medical treatment. It is a directive that applies across all health care settings, providing doctors, nurses, EMTs and other health care providers with consistent instructions in the event medical treatment is needed. Ideally, the completed MOLST form should be kept with the patient at all times.
MOLST versus health care proxy; having both is recommended
A health care proxy is a legal document that names a health care agent to make future medical decisions if a person becomes incapacitated and cannot make his or her own medical decisions. Conversely, a MOLST form is a medical order for current medical illnesses that is actionable immediately upon signing, whether or not a person has capacity. Advance directives, including health care proxies and living wills, are legal documents that are effective only after the patient has lost capacity. In other words, a health care agent can make decisions for a person only after he or she has been determined to lack capacity; a living will is relevant only after the patient can no longer be consulted. A MOLST form, on the other hand, is a medical document signed by both the clinician and the patient, and is effective as soon as it is signed, regardless of a patient’s capacity to make decisions. It isn't subject to the same indecision/lag that an advanced directive may be while a determination of capacity is being made.
It is recommended that individuals execute both a health care proxy and a MOLST form as the documents often address different circumstances. However, it is important to note that if an individual loses capacity, a health care agent may sign a MOLST form on behalf of the incapacitated person or even reverse decisions on an existing MOLST form in order to carry out what the agent believes is the principal’s known wishes for treatment.
MOLST versus DNR
Do not resuscitate (DNR) directives remain valid even though MOLST forms also may be used to indicate a patient’s DNR directive. In cases of cardiac or respiratory arrest, if a MOLST form and DNR directive are both present, the order signed most recently will control. In all other cases, the MOLST form should be followed by health care providers.
Applicability of a MOLST in other states
MOLST programs (or programs equivalent to MOLST) exist in many, but not all, U.S. states. A MOLST form in one state will be treated as evidence of a person’s preferences while he or she is in another state, but it is not binding in the other state. This means that if a person has a Massachusetts MOLST form, then all Massachusetts health providers must honor it. However, if the person needs medical treatment in another state, the Massachusetts MOLST form is only a record of his or her preferences, which may or may not be honored in the other state. If you frequently travel to another state, we recommend also completing a MOLST form in that state.
More information regarding the MOLST form, including frequently asked questions, can be found at https://www.molst-ma.org/.
Dena W. Hirsch is an attorney at Rackemann, Sawyer & Brewster. She concentrates her practice in all aspects of trusts and estates law, representing clients in estate planning, estate administration, trust management and tax planning.