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What is a Living Will?

A living will is a legal document detailing the author's wishes regarding their medical treatment if they can no longer make informed medical decisions. Also called "directives to physicians" or "healthcare directives", a living will allows individuals to state their preferences for medical treatment in advance to their healthcare provider in case they become incapacitated and unable to communicate their wishes. Living wills detail the kind of medical care and assistance a person desires toward the end of life.

Although living wills are not official wills, they are legally binding documents that must be respected and followed. They aim to remove the confusion or conflict among family members or healthcare providers regarding what should or should not be administered to the incapacitated person.

Per Section 166.031 Subchapter B of the Texas Health and Human Safety Code, the following are the requirements for creating a living will in Texas:

  • Persons creating a living will must be 18 or older
  • The living will must be in writing. Verbal directives are not legal in Texas.
  • The individual creating the living will be of sound, having the capacity to develop the living will and make important medical decisions.
  • The living will must be signed by the individual creating the document. In addition, the living will must be signed in the presence of two qualified adult witnesses.

Advance Directive vs. Living Will: What’s the difference?

An advance directive is an instruction to administer, withhold, or withdraw life-sustaining treatment in the event of incapacitation or terminal conditions. Living wills are specific documents that detail a person’s preference for medical treatment in the future in the event they are incapacitated or become terminally ill. An advance directive is a broader term covering any form of legal documentation guiding a person's future medical care. It includes medical Power of Attorney, Do-not-resuscitate Order, and living wills. Therefore, all living wills are advance directives, but not all advance directives are living wills.

Why Would You Need Living Wills in Texas?

Living wills in Texas become important when individuals cannot direct their medical care due to illnesses, accidents, or incapacitation. Having the right legal document ensures the individual receives their preferred medical treatment if their inability to communicate is affected.

Benefits of having a Living Wills in place

The following are the potential benefits of having a living will in place

  • Living wills allow individuals to dictate their preferences regarding the medical treatment they wish to receive even when unable to communicate.
  • Living wills empower individuals with control over their healthcare decisions, granting them the right to make medical-based choices that align with their values or beliefs.
  • It reduces the burden of loved ones for making difficult medical decision
  • Living wills guide family members, reducing uncertainty and conflict among them
  • A living will eliminates the financial burden for family members, as the individual can decide in advance what would reduce or eliminate the cost of care

Potential risks of not having a Living Wills

Failure to have a living will in place can pose several disadvantages when an unexpected life event occurs and the individual cannot communicate their medical care preferences. The risks of not having a living will in place include:

  • Without a living will, the state may choose someone close to decide the individual's medical treatment decisions. The person selected may lack the idea of the individual's medical preferences
  • A living will in place eliminates receiving any kind of care or treatment invariance to the individual's beliefs, religion, or values
  • Healthcare professionals may be reluctant to administer certain treatments where there is no clear instruction through a living will, leading to delays in receiving medical care
  • Where there is no living will, the individual stands to receive inappropriate treatment or care
  • Having a living will in place eliminates conflicting opinions from family members regarding the type of care the individual should or should not receive

Examples of situations where a Living Wills can be useful in Texas

There are various scenarios where living wills become useful. Some of them include:

  • Terminal Illness: The living will become active when an individual diagnosed with a terminal illness becomes unable to make medical care decisions
  • Accident or Injury: Accidents can leave a person unconscious or incapacitated. A living will in place during an accident can guide healthcare practitioners on the course of medical treatment or care the individual desires.
  • Medical Emergencies: Sudden healthcare emergencies such as stroke, breathing difficulties, or heart attack can make an individual unable to communicate. A living will can inform medical practitioners on how to proceed with medical treatment during such emergencies.
  • Dementia: Dementia affects one’s cognitive abilities and as the illness progresses, the individual can lose their ability to make informed medical decisions. A living will ensures that the individual receives the care they prefer as the illness progresses
  • Organ Donation: Some individuals may choose to donate their organs after death. The living will specify the individual's conditions for organ donations and speed up the donation process.

When Does Your Living Will Take Effect in Texas?

Per Section 166.038 of the Texas Health and Human Safety Code, a living will become effective when the following conditions are met:

  • Incapacitation: A living will becomes effective in Texas when the individual named on the document cannot make and communicate healthcare decisions due to illness, accident, or cognitive decline
  • Doctor’s Certification: A licensed medical practitioner in Texas certifies that the individual has a terminal or irreversible medical condition

Therefore, living wills in Texas are not automatically active upon signing or attaining a certain age. Instead, it becomes effective when the individual cannot make medical decisions or when a healthcare professional certifies the terminal condition.

There is no specified start or duration to a living will in Texas. A living will becomes effective when a licensed health practitioner determines that the individual is incapacitated and unable to make their own healthcare decisions. Furthermore, there is no specific duration of a living will. Once a living will becomes active, it remains in effect until the individual recovers, dies, or is revoked by an agent appointed and authorized by the individual.

However, while living wills have no duration, certain factors impact how long the living will is active in Texas.

  • Improved Health Conditions: Where the health of the individual improves and they regain the ability to make medical-related decisions on their own, the living will may be suspended
  • Treatment Decisions: The duration of a living will is limited to the specific treatment listed in the document. A living will that specifies a terminal condition, for instance, would last for the duration of the illness only, even if the individual has other medical conditions.
  • Change in Residence: A change in the individual's living situation can influence the duration of a living will. For instance, the person moves from Texas to a different state or country with laws governing living wills. The living will becomes invalid and unenforceable.

The following tips can ensure that the living will becomes active and valid during the period of incapacitation:

  • Define clearly the events that can lead to the activation of the living will
  • List the specific medical criteria that must be met before the living will becomes effective
  • State how long the living will stay effective once it becomes active. Such event may occur upon attaining a medical milestone or after certain medical treatments are attempted.
  • Specify that the living will remain active until the principal revokes it
  • Engage the expertise of a legal professional in healthcare law to guide the start and duration of living wills
  • Consider appointing an agent, medical Power of Attorney, in addition to the living will, to make decisions when incapacitated

How to Get Living Wills in Texas

Understanding living wills and what it entails before creating one is important. Also, one must appreciate Texas law to determine eligibility and ensure compliance validity before obtaining the document. There are several steps involved in creating a living will in Texas.

Legal requirements for creating and executing a Living Wills in Texas.

The following are the requirements for creating and executing a living will in the state per Texas law.

  • The individual must be 18 years or older
  • The person creating the living will, also called declarant, must be of sound mind and capable of making important medical decisions
  • The living will must be in writing, handwritten, typed, or printed. Texas law does not accept oral living wills or digital documents of the living will
  • The declarant must make a living will willingly. Living wills made out of coercion is invalid in Texas
  • The living will must clearly state the individual's healthcare preferences
  • The living will must be signed in the presence of two credible adult witnesses. Per state law these witnesses must be 14 years and older and must not be:
    • Related to the declarant by marriage or blood
    • A beneficiary of the declarant’s estate
    • The individual’s physician or employee of the same
    • Directly responsible for the individual’s estate
    • Entitled to any personal or healthcare benefit from the individual's estate
    • An employee in a healthcare facility where the declarant is receiving care
    • An appointed guardian of the declarant

The cost of creating a living will vary depending on the complexity of medical preference and the legal practitioner's expertise, experience, and location. Generally, it costs between $300 - $600 to create a living will in Texas if using the services of a lawyer. These fees usually cover the cost of counseling and document drafting to meet state-specific requirements. Other legal costs associated with creating a living include notary and witness costs. It is possible to make a living will without using legal help. There are online resources that provide drafts and free templates for living wills. Some online tools permit users to create handwritten living wills anywhere from $0 - $100. When using online templates declarants may incur minor costs such as printing and copying fees.

Preparing a Will: How to Write One in Texas

Preparing a living will in Texas ensures that an individual's wishes regarding medical treatment during incapacitation are followed. To commence the process, individuals must understand Texas laws regarding living wills and consider their preference for medical treatments and interventions such as resuscitation and life support. The individual can then draft the document and provide the necessary information. In addition, the state offers an Advance Directive Form, where residents may create their living will to communicate their wishes for future medical treatment. For a living will to be valid and legally binding in Texas, it must contain the following required fields

  • Identifying information of the declarant, including the full name, address, and date of birth
  • Declaration of legal capacity of sound mind to create the living will
  • Statement of intent expressing preferences regarding medical treatment in specific circumstances
  • Directive to healthcare practitioners specifying the individual’s life-sustaining preferences and receiving or refusing specific medical interventions
  • Witness signature. The living will must be signed by the declarant and 2 witnesses

Some living wills contain notarization, personal statements regarding the individual's preferences, additional provisions on medical treatment, religious beliefs influencing medical care decisions, and appointment of a healthcare proxy. Although allowed on the living will form, this information is optional.

A declarant needs to communicate their healthcare choices accurately and effectively so they can receive the medical care they desire when incapacitated. Declants can apply the following tips when completing the form to ensure that.

  • Read up on Texas state laws on creating a living will, as well as the different types of medical interventions available
  • Consult healthcare practitioners about specific medical treatments. They can provide the necessary information required to help make an informed decision that matches your preferences and values.
  • Be clear and specific on the form. Avoid using complicated languages. Be specific on the type of treatment to receive or refuse
  • Anticipate different medical scenarios and complications and specify preferences for each situation.
  • Appoint a trustworthy healthcare proxy. A healthcare agent can make decisions on the declarant's behalf during incapacitation.
  • Discuss the preferences listed on the living will with family, medical proxy, and healthcare practitioner so they understand your preferences.
  • Seek legal counsel from licensed legal practitioners when filling out the form.

To properly execute the living will in Texas, the declarant must obtain the living will form and carefully fill out the same completing all required sections. Declarants may also complete the optional section specifying their preferences for other treatments and naming a healthcare proxy. Texas law requires that the declarant and two witnesses will sign the living. It is optional to notarize living wills in Texas.

Recording the living will requires the declarant to make copies of the completed and signed living will form and distribute copies to their medical practitioner, healthcare agent, primary caregiver, and family members. The declarant must keep the original document in a safe place that is accessible to the healthcare proxy when needed.

How Often must I update my Texas Living Will?

No state law mandates the periodic updates of living wills in Texas. However, it is recommended that the declarant review and update the living will every 3 - 5 years when there are significant life changes or changes in the declarant's healthcare preference.

Factors that may necessitate updating a living will

The following situation may necessitate the declarant to update their living will:

  • Changes in the principal’s health status. A new diagnosis, progression of an existing medical condition, or improvement of an existing condition can necessitate reviewing and updating the living will to ensure it captures current realities.
  • Relocating from Texas to a different state. Changes in the living situation require the principal to review and possibly update the living will to ensure it complies with the laws of the new state of residence
  • Advancement in medicine. Breakthroughs in medical technology or new medical recommendations from the healthcare provider may compel the principal to evaluate and amend the living will accordingly
  • Major life changes such as marriage, divorce, or childbirth can influence the principal's medical care preferences, causing them to effect changes in their living wills

Recommendations for reviewing and updating a living will

Reviewing and updating living wills ensures that the document accurately reflects the wishes of the principal. The following are recommended when reviewing or updating a living will:

  • Choose specific times throughout the year to review the document to ensure that it is up to date
  • Consider reviewing the living will after major life changes occur
  • Review the document after a major health diagnosis to ensure treatment options are still applicable to the new diagnosis
  • The declarant must stay informed about advancements in the healthcare sector that can influence their preferences
  • Periodically review state laws for changes in regulations that can affect the validity and enforcement of the living will
  • After reviewing and updating the living will, ensure that the document is duly signed by the principal and 2 witnesses to ensure the changes become legally valid.

Do I Need a Lawyer to Create a Living Will in Texas?

No, a lawyer is not needed to create a valid living will in Texas. However, it is widely recommended to have an attorney review a living will to ensure it complies with legal requirements. An attorney reviewing it can help ensure that:

  • The living will is valid and complies with the laws of Texas
  • The language is clear and without ambiguities
  • Principal understands aspects of the living will, such as preserving the right to refuse treatment
  • The document coordinates properly with other estate documents of the principal to avoid conflicts

What’s the Difference between a Living Will and a Medical Power of Attorney?

Living wills and Medical Power of Attorneys are documents used to plan future medical care. However, while they both offer guidance for medical care, they are different. Their differences include:

Living Will Medical Power of Attorney
Living wills are directed at the doctors to follow the directions of the principal Medical Power of Attorney appoints a decision maker to follow through with the decision of the principal
Are activated when the principal is terminally ill or incapacitated Are activated when the principal is unable to make medical decisions themselves
Living wills are limited to following the stated wishes of the principal Medical power of attorney permits the agents of the principal to make a broad range of medical decisions

Can a Living Will Be Broken in Texas?

Yes, a living will can be broken in Texas. The Texas Estate Code, Section 253.002 makes provision for the revocation of wills and living wills. The creator (principal) of the living will can revoke the will at any time as long as they are mentally competent to do so. The principal can revoke the will by:

  • Writing a statement that revokes the original living will with a signature and date to strengthen the validity
  • Destroying the original living will document via shredding, tearing, or any form of action that renders it unusable
  • Creating a new living will that revokes the old one by contradicting the provisions of the original

A person can also challenge the validity of the living will of the principal in court if:

  • They believe it was not prepared properly
  • The principal was not mentally competent when they signed it
  • There was fraud, or undue influence was involved

Also, the Texas Advance Directives Act permits healthcare facilities and doctors to set aside a living will based on their religious beliefs or conscientious objections. If a facility objects, it must inform the patient or a legal guardian and facilitate transfer to another facility willing to follow the instructions in the living will within ten days.

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