The Texas Living Will

Physician's Directives in Texas

What Is a Directive to Physicians?

Also called a “Living Will,” this document clearly communicates to family, caregivers, and physicians what exactly the patient’s wishes are for health care once the patient can longer make medical decisions, including life-sustaining treatments. The document allows the patient to define different choices about medical care, depending on whether the medical condition is “irreversible,” or “terminal.” Each of those conditions are based on the judgment of the patient’s doctor. You can find the Directive to Physicians at Tex. Health & Safety Code § 166.001 et seq. Note that a Directive to Physicians is not the same as a DNR or “do not resuscitate” order. Guidelines for a DNR are in Sections 166.081 et seq. of the Texas Health and Safety Code.

How Do the Two Conditions Differ?

A “terminal condition” is an incurable condition which will lead to death within six months even with life sustaining treatment. A patient who qualifies for hospice care has a terminal condition. Tex. Health & Safety Code § 166.002(13).

An “irreversible condition” has three components: It can be treated but not cured. It leaves the patient unable to make decisions. Without life-sustaining treatment, an irreversible condition is a fatal condition. Tex. Health & Safety Code § 166.002(9).

While both conditions will cause death, the key difference between a “terminal condition” and an “irreversible condition” is the timeframe. A terminal condition” has a life expectancy of 6 months. An irreversible condition has a life expectancy of 6 months or longer.

“Life-Sustaining Treatment” is treatment that keeps the patient alive; without this treatment, the patient will die. Such treatment includes artificial life support, dialysis, and hydration (also known as feeding tubes and I.V.s). However, it does NOT include pain medication or pain management. Tex. Health & Safety Code § 166.002(10).

What Happens If I Do Not Have a Living Will?

Let’s say that the patient does NOT have a signed Directive but DOES have a medical power of attorney and/or a guardian. When the patient is no longer able to make treatment decisions, then the person with medical power of attorney or legal guardianship has the authority to make final life and death treatment decisions. Tex. Health and Safety Code Section 166.039.

Should the patient not have a Directive, a medical power of attorney, or a legal guardian, decisions about life-sustaining treatment go to family members in this order: first, the spouse, second, “reasonably available adult children,” third, the parents, and finally, the nearest living relative. Tex. Health & Safety Code § 166.039(b)

How Can an Estate Planning Lawyer Help?

End-of-Life care can be overwhelming and exhausting. Input from an estate planning lawyer can help you and your family members safely navigate the complex end-of-life decisions that may arise, such as powers of attorney, legal guardianship, and HIPPA authorizations. An estate planning lawyer can provide expertise to help lessen confusion during an emotional time, making the Directive to Physicians, your Living Will, a true gift to your family members.

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