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 www.Premack.com).

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

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) 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 Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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