Throughout your lifetime you enjoy the freedom and the ability to make important, sometimes life-changing, healthcare decisions for yourself. This is something that most of us take for granted in the United States. What happens though if you are one day unable to make those decisions for yourself because of an incapacitating condition? The answer may be to make the decisions ahead of time through the execution of a living will or advance directive.
Most people think of “incapacity” only in terms of an old age related disease such as Alzheimer’s; however, the reality is that incapacity can strike at any age as a result of a catastrophic accident of debilitating illness. For this reason, it makes sense to include one or more advance directives in your estate plan regardless of your age.
Although people frequently use the term “living will” to refer to any type of advance directive, Texas actually recognizes four different types of advance directives, one of which is a living will. In Texas, a living will is properly titled “Directive to Physicians and Family or Surrogates”. This document allows you to direct a doctor to “administer, withdraw or withhold life-sustaining treatment when it has been determined by your physician that you have an irreversible or terminal condition.”
Another important type of Texas advance directive is a Medical Power of Attorney. This document allows you to appoint someone to make healthcare decisions for you in the event that you are unable to make them yourself. In the absence of a Medical Power of Attorney, a court may be forced to decide who will be given the authority to make decision on your behalf.
An Out-of-Hospital-Do-Not-Resuscitate Order, or DNR, is yet another advance directive that lets you decide that you do not wish to receive specific life-sustaining treatments outside of a hospital setting. For instance, if you have a terminal illness, you may wish to execute a DNR that will allow you to pass away in peace at your home or place of residence. In the absence of a DNR order, rescue personnel are legally required to do everything reasonably possible to keep you alive or resuscitate you when they arrive.
Finally, a Declaration for Mental Health Treatment allow you to make many of the same decisions as a Directive to Physicians and Family or Surrogates but as they apply to mental health treatment specifically. If, for example, you end up with late stage Alzheimer’s which will cause you to be mentally incapacitated, do you want to be given psychoactive medications? Do you wish restraints to be used? These are the types of decisions you can make now with this advance directive.
If you wish to execute one or more of these advance directives, consult with your estate planning attorney.
Stephen A. Mendel, Estate Planning Attorney
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