The Living Will


Estate Planning Series Continued

Welcome to entry #7 of our estate planning series—Estate Planning 101. We continue today with a discussion of the “living will,” also known as a directive to physicians or family.

It’s 3:00 on a Friday afternoon and you just received the blow of a lifetime. Your wife, who has struggled with stage four breast cancer for the last 22 months, has been given four months to live.

Due to pain, and the medications she has been prescribed, she is no longer considered competent to make medical decisions for herself. As her husband, you want to spend the next fifty years with her by your side, however, that is no longer a possibility.

However, you really don’t know what she would want for herself in this situation and you must now decide whether to keep her comfortable and allow her to die peacefully, or to keep her alive through life-sustaining treatments. You find yourself wondering, is there an easier way to make this decision? The answer is yes.

A Living Will

A living will allows an individual to communicate their wishes as to any life-sustaining medical treatments if they become unable to make decisions on their own behalf due to an illness or injury. The Texas Legislature has established a statutory form for a directive to physicians.

—See Form of Written Directive—Tex . Health & Safety Code § 166.033

A living will allows a person to state their wishes for treatment specifically in the event that they are diagnosed with either a terminal or irreversible condition. The directive must be signed by two witnesses or notarized. At least one of the witnesses may not be related by blood or marriage to the patient, may not be entitled to any part of the estate of the patient, or have any claim against the estate.

There are also certain limitations on which health care professionals may witness a living will. Once the directive has been executed, the patient’s doctor must be notified and the living will should be made a part of the patient’s medical record. This ensures that all health care professionals who attend to the patient will be on notice of the directive.

—See Form of Written Directive—Tex . Health & Safety Code § 166.033

What do terminal and irreversible mean? 

When a person is diagnosed with a terminal condition, this means they have been diagnosed with “an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.” In other words, that person is expected to pass away within six months or less regardless of whether they are given the top of the line life-sustaining treatments.

—See Form of Written Directive—Tex . Health & Safety Code § 166.033

An irreversible condition is defined as “a condition, injury or illness: (1) that may be treated, but is never cured or eliminated; (2) that leaves a person unable to care for or make decisions for the person’s own self; and (3) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.” Unlike a terminal condition, receiving life-sustaining treatments can and will keep the patient alive.

—See Form of Written Directive—Tex . Health & Safety Code § 166.033

What are life-sustaining treatments?

Within the Texas statute, life-sustaining treatments are defined as “treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die.” This can include medications, artificial life-support such as mechanical breathing machines, kidney dialysis treatments, and artificial nutrition and hydration treatments.

—See Form of Written Directive—Tex . Health & Safety Code § 166.033

Life-sustaining treatments however, do not include pain management medications, procedures merely for comfort care, or any other medical care provided to alleviate pain.

What choices can I make?

Under a directive to physicians, a person must make a separate determination for each situation – whether they have been diagnosed with a terminal or irreversible condition. An individual can request that all treatments, other than those needed to keep them comfortable, be stopped or withheld. This option allows that individual to pass away as gently as possible but specifically withholds any treatments that will keep the patient alive.

—See Form of Written Directive—Tex . Health & Safety Code § 166.033

An individual may instead choose to be kept alive in their condition (terminal or irreversible) through the use of life-sustaining treatments. Again, separate choices must be made in case of a future terminal condition or irreversible condition.

—See Form of Written Directive—Tex . Health & Safety Code § 166.033

Why do I need a living will?

In many situations, like the one described above, when a living will has not been executed, the family members are left with the heart wrenching choice of whether to continue or even start life-sustaining treatment. When a family member subsequently chooses to discontinue that support and their loved one passes away, guilt is often left in the wake. In many instances, family members have not discussed what they would want in such situations leaving the family members at a loss for what to do.

A living will takes that decision out of the hands of the grieving family members and places it back with the patient.

Spend some time thinking about what treatments you would want to receive or not receive. These are not easy decisions to make and should not be taken lightly. Then contact your Estate Planning attorney to discuss executing a living will. Remember to make sure and let your doctor know and have the executed directive placed in your medical file.

–Authored by Kayla R. Wimberley, Esq.,


Matthew Harris Law, PLLC – Estate Management Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

[email protected]