Texas Living Wills Laws

Many Texans have heard of a living will, but may not be sure if they need one. A living will is sometimes confused with a last will and testament. Your last will and testament is the legal document that expresses how you want your property distributed after your death. A living will is the legal document that expresses how you want your healthcare decisions made if you are terminally ill or in a persistent vegetative state. These scenarios are difficult to think about, but it’s a good idea to take charge of your future and provide your family members and loved ones with your guidance.

What is commonly known as a living will is referred to as a “Directive to Physicians and Family or Surrogates” in the Texas statutes. For purposes of this article, we’ll use “living will,” which is the more commonly used term.

A living will can be a part of your comprehensive estate plan. If you’re not ready to take on the task of full-blown estate planning, a living will is also effective as a stand-alone document. This article provides a general overview of the legal requirements for making a living will in Texas, the potential limits of a living will, and your options for creating one.

Requirements To Make and To Revoke a Living Will in Texas

The laws governing living wills are found in the Texas Health and Safety Code. The Advance Directives Act establishes specific requirements for making a valid living will, as well as several ways you can override your living will.

Making a Valid Living Will

A living will must meet these requirements to be valid under Texas law:

• Competent adult: A competent adult (declarant) may make a living will at any time
• Witnessed or notarized: The declarant must either sign the living will in front of two qualified witnesses or have their signature acknowledged by a notary public (under certain conditions, the declarant, witnesses, or notary public may use a digital or electronic signature)
• Oral directive: A declarant may issue an oral (non-written) directive, which must be done in the presence of the attending physician and two qualified witnesses, typically within a healthcare facility
• Medical record: The physician must enter the written living will into the medical record (for an oral living will, the physician must make the fact of the oral living will part of the medical record, along with the names of the witnesses)

A Texas living will is subject to certain statutory limits. For example, under Texas law, life support may not be withdrawn or withheld from a pregnant patient.

Overriding Your Living Will

For many reasons, a declarant might change their mind about the directions in their living will. The statutes include several safeguards to ensure a declarant’s present intent overrides the decisions they previously made in their living will.

You can revoke your living will at any time. Regardless of your mental state or competency, this can be accomplished by any of the following methods:

• Physically destroying a written living will (or directing someone to do it for you in your presence)
• Signing and dating a written revocation
• Orally expressing your intent to revoke your written will

Further supporting the idea that you remain in control of your medical decisions despite having a living will in place, Texas law states that a qualified patient’s current wishes supersede a living will. In other words, your physician must follow your real-time directive over your living will.

You can also reexecute your living will at any time, including after being diagnosed with a terminal or irreversible condition. Like all legal documents in your estate plan, reviewing your living will is a good practice. Reexecuting your living will is not required, but it can help reassert your intent over time or after a serious diagnosis.

Potential Limits of a Living Will

A living will is an important legal document, but its authority does have limits. For example:

• Limited application: Your Texas living will only applies if you are either incompetent or competent but unable to communicate and have a terminal or irreversible condition
• Doctor-dependent: Your attending physician must diagnose and certify in writing that you have a terminal or irreversible condition
• Limited scope: A living will addresses end-of-life care decisions, directing your care as to administering, withholding, or withdrawing life-sustaining treatment

For these reasons and more, many Texans choose to pair a living will with another legal document: a medical power of attorney. While a living will documents your instructions for medical decisions, a medical power of attorney (sometimes referred to as a durable power of attorney for healthcare) appoints a trusted person, known as an agent, to be your decision maker for your healthcare while you’re incompetent.

A living will is your direct statement about your wishes for medical treatment, but its scope is limited by law and by the four corners of the document. By contrast, an agent acting under a medical power of attorney must follow your known wishes, including those expressed in your living will, and may otherwise consider your religious beliefs, values, and the circumstances at the time of making medical decisions on your behalf. Together, a living will and a medical power of attorney are a powerful combination for ensuring that the healthcare decisions made on your behalf align with your beliefs and values.

How To Make a Living Will

When making your living will, you have several options. A statutory Texas living will form is a free resource. This form is simple and straightforward, but might not meet your specific needs. Another option is to use a state-specific online do-it-yourself document service. These documents tend to offer a little more flexibility for a more customized living will. Finally, you can work with a Texas living wills attorney.

Work With a Texas Living Wills Attorney

Getting a living will may be the first legal document in your estate planning journey, or an addition to a plan already in place. In either case, a Texas estate planning lawyer can help you achieve your goals. Your attorney will listen to your concerns and thoughts about your healthcare wishes and create a living will that reflects your advance care planning goals, including treatment decisions. With this planning document in place, your health care providers will have insight into how to handle your end-of-life medical care when you can no longer speak for yourself.