Death—like divorce—isn’t something most people think a lot about. For some reason, us humans aren’t too keen on endings, and when you’re caught up in the act of living, it’s easy to forget that bad things happen to everyone.
However, unlike divorce, death isn’t just a possibility. It’s a certainty. At some point, the Grim Reaper comes for all, leaving us with only two real questions: When? And How?
Neither is easy to answer, but both can be prepared for by drafting a living will.
Here’s what you need to know about drafting a living will in Texas, why you might want one, and how the Neal Ashmore team can help with yours.
What is a Living Will?
A living will—also called a “health care directive,” or “advanced directive”—is a document that lets doctors, health care professionals, and family members know what medical decisions you want made on your behalf, if certain things ever happen.
For example, if you get in a car crash tomorrow, and end up in a coma on life support, a living will could be used to tell doctors your thoughts on persisted vegetation, whether or not you want them to keep your body plugged in, and for how long.
It’s kind of like being able to speak your mind when everyone is talking about you, and you’re not there to defend yourself.
A living will gives you control over your own medical emergencies. It enables you to make these important choices for yourself before they happen, so that family members don’t have to guess on your behalf.
When Would I Need a Living Will?
Living wills are typically confined to medical directives that happen as a result of:
- A terminal illness;
- An incapacitating injury; or,
- A state of permanent unconsciousness.
It probably goes without saying, but in each of these scenarios, your condition would also need to be so bad that you can’t actually communicate on your own behalf.
If you can communicate your own desires, then medical staff will take your verbal consent or refusal over anything else—even if what you want (or don’t want) contradicts the terms of a current living will.
A living will is only utilized when you can’t speak for yourself. If you can, then it’s irrelevant.
What Can a Living Will Cover?
A living will can be used to cover any medical procedure that might possibly arise in one of the aforementioned scenarios, including whether or not it’s okay to:
- Resuscitate (either via CPR or electric shock);
- Use ventilation;
- Insert a feeding tube;
- Apply kidney dialysis; and,
- Administer medication (such as antibiotics or antivirals).
Living wills almost always contain stipulations about withdrawing or withholding life support, under terminal or irreversible conditions. Resuscitation is another common directive people often want to address.
In addition, these documents can be used to stipulate end of life care (such as hospice), and whether or not the person would like to donate organs, tissue, or other body parts to science or medicine.
What Can’t a Living Will Do?
One of the biggest drawbacks to a living will, is its limited scope.
In Texas, a living will can only be applied to situations where the medical treatment or procedure is absolutely necessary to save your life. This means that—even if you’re unconscious (or unable to communicate)—the directives outlined in your living will won’t be applied unless you start to flatline.
This constraint can be a real bummer, especially if you’re struggling with something like comfort or pain management.
Unfortunately, however, Texas law is clear on this point. So, if you want to make sure there’s someone around to make sure you’re getting a proper morphine drip while unconscious, you’ll need to give someone you trust a medical power of attorney.
A living will also cannot be used to divide your property, once you die.
Living Wills vs. Last Will and Testament: Not the Same Thing
It’s confusing, we know, but a living will is not the same thing as a person’s last will and testament. With such similar names, the two are understandably easy to mix up, however, they actually serve very different functions.
Unlike a living will—which deals strictly with end of life scenarios and other medical emergencies—a last will and testament governs physical property, and is most likely what you think of, whenever you hear the word “will.”
A last will and testament dictates how your assets will be divided, to whom they will be divided to, and appoints an executor, who is in charge of enforcing these terms, once you die. This document can also be used to appoint a guardian for minor children, in the event of your untimely demise.
If you die without a will, it isn’t the end of the world—in fact, you’ll be in good company, since by most estimates, not even 50% of U.S. adults have one.
When someone dies without a will in Texas, their assets are distributed according to the standard laws of probate. So, you don’t have to worry about your property suddenly disappearing, once you die.
What you should worry about, though, is making sure your opinions about end of life and medical procedures are clearly defined, so that your loved ones don’t have to guess blindly during an emergency.
What Happens if I Don’t Have a Living Will?
In Texas, if you sustain an incapacitating injury or illness without a living will (or before you can assign medical power of attorney), then live-saving medical decision will be made by the physician in charge, in cooperation with one of the following:
- The patient’s spouse;
- An adult child of the patient;
- One of the patient’s parents; or,
- The patient’s nearest living relative.
Keep in mind that doctors are bound—both by law and by oath—to carry out whatever procedures necessary to save your life, so there will be very little that family members can do to stop them, if you can’t speak for yourself.
Hence, if you feel strongly about not wanting life-saving treatment, it’s best to speak to an attorney today, in order to get your wishes in writing.
Living Will Attorneys in Texas
Death might seem like a long way off, but the truth is no one really knows when the Piper will come to collect his dues. It could be tomorrow, next week, five years from now, or seventy-five, but the one thing we do know is that it’s coming. Which is why we think it’s better to prepare for those decisions now, so that your loved ones don’t have to, later.
If you have more questions about how to draft a living will, we want to hear from you. Call the Neal Ashmore team today at (972) 436-8000, or schedule a consultation online, and let us help ensure that your life-saving directives are handled exactly the way you want.
