You Must Replace a “Living Will” with a “Directive to Physicians”

The idea that life should not be artificially sustained when there is no hope of normal life has become widely accepted in the last decade. Many people cringe at the thought of being hooked to life support machines and indefinitely sustained after their time has passed.

A statutory “Directive to Physicians” helps you avoid the emotional and monetary cost of lingering death, but (contrary to popular belief) a “living will” is a false and unenforceable promise of help. Do not rely on a living will. If you have one, it is not enforceable. Your “Living Will” should be replaced with a “Directive to Physicians”. The Virtual Online Law Office can prepare them at minimal cost.

A “living will” is broad, usually stating that “if there is no reasonable expectation that I will recover…” from an illness, that “it is my wish that I be allowed to die”. Though it is a meaningful expression of intent, a living will cannot guarantee your wishes will be followed.

The Texas “Directive to Physicians” is your instruction to remove artificial life support when death is imminent (or might result within a relatively short time) due to existence of a terminal condition. You must sign your Directive in front of two qualified witnesses.

The Texas Natural Death Act says you must have a “terminal condition” for life support to be removed. Two physicians (one of whom may be your primary care physician) must concur in the diagnosis. The doctors must continue to provide comfort and relieve pain.

The goal of our law is to allow death to come naturally: no sooner, no later. Texas does not allow any deliberate act to end a life.

Your physician must comply with the Directive. If he or she refuses, your doctor must transfer your care to another physician. Your physicians, nurses, and health care facilities are not subject to civil liability unless negligent. They may not be accused of any criminal act or of unprofessional conduct unless negligent.

Variations, such as making the directive orally or appointing someone to make the decision for you, are allowed. Each of these options is surrounded by problematic technicalities.

The technical requirements of the Act far remove it from the realm of simple “living wills”. Death with dignity is possible. If freedom from machines and artificial intervention is your preference, replace your “living will” with a “Natural Death Directive”.

Original Publication: San Antonio Express News, November 3, 1989

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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.

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