What is a Living Will

Written by Troy Moore

Probate & Personal Injury Trial Attorney in Houston, Texas.

April 8, 2020

What is a Living Will vs. a Will?

A Living Will and a Will (i.e. Last Will & Testament) are starkly different things. A Living Will is a document you fill out prior to becoming ill. This document then tells your physician what kind of medical treatment you want — or more importantly do not want — in the event you are diagnosed with an irreversible or terminal condition. It applies during your lifetime and terminates at death. The formal legal name for this legal document is Directive to Physicians or Advance Directive. Some people also call it a Medical Directive.

On the other hand, a Last Will & Testament is the document you leave behind that dictates who gets your property when you die.

Folks commonly call lawyer’s offices asking about getting their Living Will done when the personal actually just wants their Last Will & Testament done.

When Does a Living Will Take Effect?

A Living Will is ready to go once it has been signed. However, it does not spring into action until two things have happened:
1. The maker of the Living Will has to be incapacitated, which means that the person is, for whatever reason, mentally currently incapable of communicating effectively with his/her physician regarding his/her healthcare decisions, and
2. The make of the Living Will has been diagnosed with either a terminal or irreversible condition.

One of the great things about a Living Will is that you are making your own medical decision regarding your healthcare ahead of time. This takes an immense burden from the shoulder of the family member who would have to make that decision on that family member’s own terms if your advance directive was not put in place.

What is a Terminal Condition?

Terminal condition” means 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.

The directive to physicians contains this definition in the contents of the directive to physicians.

What is an Irreversible Condition?

“Irreversible condition” means 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.

What is Life-Sustaining Treatment?

“Life-sustaining treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication, the performance of a medical procedure necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.

Select the Choice for You

While you sign the Living Will (a/k/a Advance Directive), you have to make a selection under the two categories for terminal condition and irreversible condition. You have essentially the same two choices under each one.

A. ___ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; or

B. ___ I request that I be kept alive in this terminal/irreversible condition using available life-sustaining treatment.

Usually, about 98% of people pick selection A because they do not want to be hooked up to machines, living artificially, for their final moments in life (not to mention the astronomical medical bills that pile up).

What is the Main Drawback of a Living Will

There is not one, in the author’s opinion. There is a main drawback of a living will, however, if you do not have one. A hospital could tend to want to keep your body hooked up to expensive machines in order to increase the bill, long after your quality of life has ended.

How does a Living Will work with a Medical Power of Attorney?

Texas state law allows your health care agent a/k/a health care proxy to make health care decisions independent of the decisions set out by you in the advance care planning for terminally ill individuals. The care decisions set out the treatment preferences for the advance directive forms that are to take place along with your attorney for health care.

When Does a Living Will Apply?

A Living Will is only applicable if you are no longer able to make a health care decision for yourself. Even if you have been diagnosed with a terminal condition and have been given only 24 hours to live, so long as you can communicate with your doctor, the Living Will does not take over any health care decision you would otherwise make on your own. In that case, the directive to physicians stays dormant.

What if I am in a Car Accident?

Even if you have been diagnosed with an irreversible condition or a terminal condition, a Living Will only makes a health care decision regarding those items in the context of the end of life scenario.

If you have suffered traumatic injury (such as a collapsed lung), and you need critical health care treatment to prevent death, then the health care providers are going to get you fixed up. They are not going to let you die just because you have a Living Will a/k/a Directive to Physcians.

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  1. Reid Perry

    Good stuff about living wills. Is that different from an advanced directive or a directive to physicians and families?

    I’ve also heard of DO NOT RESUSCITATE orders. Is that something different as well?

    I do like the video chats though.

  2. Troy Moore

    It is the same thing as an Advance Directive under Texas Law. A Living Will is also legally known as a Directive to Physicians, too. The common name for all of these is a Living Will. A Do Not Resuscitate Order (or DNR for short) is something different. A DNR is a directive to not resuscitate the person under any circumstances. In contrast, a Living Will only applies for someone who is incapacitated and is dying due to a terminal or irreversible condition, and therefore would be inapplicable for other traumatic injuries. Thanks for the great questions!

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