Some people may use the terms "living will" and "advance directive" interchangeably. However, a living will is one form of an advance directive. A living will addresses your desire regarding life support (such as being placed on a ventilator when you are unable to breathe on your own). Whereas an advance directive is used to appoint someone to make decisions regarding life support on your behalf when you are unable to do so.
Most people know of the constitutional right that prohibits a state from depriving a person of life, liberty, or property, without due process of law. The U.S. Supreme Court has ruled that the principle applies to a competent person’s constitutionally protected liberty in refusing unwanted medical treatment, such as life support. Cruzan v. Director, Missouri Department, 497 U.S. 261 (1990). In other words: you have a right to refuse life support if you are gravely ill or injured.
However, states can place a high evidentiary standard on patients who are incompetent to show they would refuse life support if they could communicate. That is, if you are unconscious or unable to make rational decisions for yourself, states can require very strong proof that you wouldn't have wanted life support before they allow doctors to turn off (or not to administer) life support. This is because the Supreme Court recognized that not all incompetent patients will have loved ones available to serve as surrogate decision makers. And even where family members are present, there will be some unfortunate situations in which family members will not act to protect a patient. Accordingly, some states require "clear and convincing evidence" that a patient would have wanted life support withheld. These states usually will not allow a patient to be removed from life support unless the patient has previously stated that was their wish.
Texas does not follow the clear and convincing standard. When a patient does not have a living will or other type of advance directive, such as a Medical Power of Attorney (“MPOA”), Texas uses the "substituted judgment" standard to determine whether to remove a patient from life support. The substituted judgment standard allows another person to make the decision on the basis that it is in the patient’s best interest or on what the patient would have decided.
In Texas, in practice, this means life support may be removed from a person if they have an advance directive / living will, have given an agent the authority to remove life support under a MPOA, or have a legal guardian who makes the decision. If those situations do not exist, then the Texas Health and Safety Code §166.039 lists the people who can make the decision (spouse, adult children or parents) if they can meet the substituted judgment standard.
Potential issues may be avoided and burdens removed from your next of kin if you make the decision about whether to have life support yourself with an advance directive. A hospital cannot require the form be notarized or the patient to use any specific form. However, the form must be either notarized or witnessed by two persons who must meet statutory requirements. Living wills are not limited to decisions to remove life support but can be used to state that you actually want to be placed on life support. You can also set conditions in which you want life support removed, such as having an irreversible and/or terminal condition. If you later change your mind, Texas Health and Safety Code §166.037 allows even an incompetent person to revoke an advance directive verbally.
Contact the Law Office of Hugh Spires, Jr. to discuss preparation of a living will / advance medical directive that will be valid under Texas law. Our estate planning attorney travels within 50 miles of San Antonio, Texas or provides your documents through a secure web portal.