The Common Law

Family law advance directives

What exactly is a living will? Does Texas law recognize living wills?

A living will is a written directive to physicians and health care providers that authorizes and directs the withholding of life support or other critical medical treatment in the event that a person is unable to communicate their wishes. Texas law, however, no longer uses the term "living will." Under Texas law, the equivalent to a living will is called the Texas Directive to Physicians, Families or Surrogates.

The Texas Directive allows a person to choose whether they would like life-sustaining treatments in two situations: a terminal condition or an irreversible condition. A terminal condition is an incurable disease, illness, or injury that doctors expect will cause death within about six months, even with life-sustaining treatment. An irreversible condition is a disease, illness, or injury that cannot be cured although it may be treated. Health care providers may also be able to assist in explaining these terms and how they apply to a person's individual health history.

A person does not need a lawyer to create a binding Texas Directive. The requirements for the form of the Texas Directive can be found at section 166.033 of the Texas Health & Safety Code (www.capitol.state.tx.us/statutes/hs.toc.htm). However, the person who creates the Texas Directive must sign it in the presence of two witnesses who meet specific requirements, and the witnesses must sign the directive. Keep in mind that the Texas Directive is revocable at any time so a person can change their mind. Moreover, the Texas Directive only takes effect when a person is unable to express their wishes, so as long as someone is able to communicate clearly, they can request treatment that is different from their Texas Directive.

There are no significant disadvantages to creating a Texas Directive, and the costs to do so are usually minimal. The benefit, however, is important -- a Texas Directive allows a person's family or physician to make the decisions that the person would have wanted.

Next week's column will address what Texas law says about do-not-resuscitate orders and medical power of attorney.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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