Changing Legal Documents Requires Specific Formalities

Dear Mr. Premack: My wife just had her name changed in Tarrant County. We both have living wills with medical attachments, etc. Can we change our wills with just a simple codicil executed by ourselves and a notary present. Thank You. – PN

You mention several legal documents: living wills, medical attachments, wills and codicils. Let’s talk first about what those are, because there is room for confusion.

“Living wills” do not legally exist in Texas anymore. The phrase was used to describe an informal declaration that you refuse artificial life support if there is no hope for your recovery. Texas statutory law took that concept and developed it, delving into a variety of complexities that were never addressed in living wills. The proper Texas document is called a “Directive to Physicians”.

“Medical attachments” might mean anything the way you have used the phrase. It could mean that you have signed a HIPAA authorization, or that you have signed a Medical Power of Attorney, or that you have signed an Out-of-Hospital DNR. Each of those is based on specific statutory authority under Texas or Federal law.

The word  “will” generally refers to a last will and testament, and “codicil” means a legally enforceable amendment to the will. Unfortunately, some people confuse the word “will” with the phrase “living will”, which as I’ve already said, is not a valid Texas document at all.

Your wife has changed her name, and you ask if your legal documents can be changed with a simple codicil signed by you and a notary. The answer is a definitive “no”. Here is why:

1. If you intend to change your last will and testament, the formalities for a codicil require your signature and two qualified witnesses. Under Texas law, notarization alone is never adequate for made a valid codicil to your will. Further, the codicil should be taken one step beyond having your signature with two witnesses; that step is called “self-proof”, and requires you and the two witnesses to sign a second time (on an affidavit attached to the codicil). The affidavit is the part that gets notarized.

2. If you intend to change the paper you called a “living will”, confirm you are using the legally valid Texas Directive to Physicians. Since it is fairly short, the best practice is to replace it with a new Directive signed by you and additionally signed either by two qualified witnesses or a notary. Do not do a codicil to your Directive; instead, sign a brand new one.

3. If you intend to change your “medical attachments”, confirm you are using a legally valid Texas Medical Power of Attorney that has been written to accommodate the requirements of the federal HIPAA law. Do not modify it with a codicil. Texas law specifically states that a Medical Power of Attorney “may not be changed or modified. If you want to make changes… you must make an entirely new one.” Under the law, a new one is valid when signed by you and additionally signed either two qualified witnesses or a notary.

4. If your “medical attachment” is an Out-of-Hospital Do Not Resuscitate Order (DNR), the law requires that it be signed by you and by two witnesses and by your physician. Any change to your DNR must follow those same requirements, so the best practice is to obtain a new form from the Texas Department of Health (or free from the Virtual Online Law Office at

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, December 31, 2010

#Codicils #DirectivetoPhysicians #LivingWill #AdvanceDirectives #EstatePlanning #WillAmendment #LastWillandTestament

DISCLAIMER: The fact that you read this website does not make you our client nor us your attorneys. The material and information on this website and associated blogs are provided for informational purposes and are not legal advice. This site does not create an attorney-client relationship between the attorney and the users of this site. Visitors to this site should consult a licensed attorney before taking any legal action. To review our Privacy Policy, click here.

Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

Phone: (210) 826-1122     All calls to our office go to Voicemail

© 2021 by The Premack Law Office, Paul Premack, Attorney.