A Living Will Isn’t a Death Sentence

Since a lot of my law practice involves estate planning, I prepare a lot of what are called “advance directives” (ADs) – documents that authorize somebody else to make decisions for you if you can’t.  The least understood of these ADs is the directive to physicians, or “living will”.  A lot of people think that if you make a living will, the doctors at the ER won’t treat you when you come in after a car accident, etc.  This is no more true than thinking that if you make a will, you’ll die the next day (I’m not kidding, people believe this stuff).

With a living will, you’re making the decision ahead of time that you either do or don’t want “heroic measures” used to resuscitate you IF:

  1. You have a terminal or irreversible condition; AND
  2. Your death is “imminent”, meaning any time within a year; AND
  3. You’re unable to communicate with your treating physician AT THE TIME YOU NEED THE EMERGENCY MEASURES.

In other words, you’ve made the decision ahead of time, either for or against heroic measures, so that your family won’t have to agonize over it when they’re already grieving about losing you and you can’t make your wishes known.

A lot of people mistakenly believe that if they do a living will, their health care providers will stop treating them if they become critically ill.  THIS IS NOT TRUE.  Even if you’ve elected not to have heroic measures, your health care providers can’t stop treating you until your treating physician AND ONE OTHER PHYSICIAN agree that:

  1. You have a terminal or irreversible condition; AND
  2. Your death is imminent

Sound familiar?  Yes, the docs have to determine the same things your living will says before they can write “DNR” (do not resuscitate) in your chart.

One other thing: the living will is what I call the most fragile legal document in Texas.  Why? Because it can be revoked AT ANY TIME, in writing, orally, or by a gesture indicating the patient’s intent to revoke.  In other words, they could be leaning over to pull the plug, and if you summon up all your strength and let out an “Unnnngh!!”, your living will is revoked.

Bottom line: choosing to execute a living will is a great service to your family because it clearly states your wishes ahead of time, but a living will is not an automatic death sentence.

As always, the above is legal information, not legal advice, and it’s based on Texas law because I’m a Texas lawyer.

PTSD – Serious for the Sufferer, Serious for the Family

Post-Traumatic Stress Disorder, or PTSD, is an epidemic among military members.  Its symptoms run the gamut from nervous reactions to loud noise, to complete incapacitation even in the simple activities of everyday life. PTSD can often be treated with medication, therapy, service animals, etc., but sometimes it leads to the ultimate tragedy: a veteran takes his or her own life.  I’m not a mental health professional, but I do assist in cleaning up the mess left when a veteran commits suicide without leaving a will.

I’m a retired Air Force Reserve Colonel.  I spent 30 years active and reserve time in the Judge Advocate General’s Corps (a military lawyer).  My civilian practice involves a lot of estate planning and probate cases, and I’ve noticed a disturbing trend in the last several years: more and more veterans leaving this earth without a will that says who will inherit their earthly possessions.  I’ve represented a number of clients whose veteran loved ones – I’m sorry, but I don’t know how else to say this – left them a mess to clean up by not making a will.

You see, in Texas, when you die without leaving a  will, your property is distributed according to the laws of descent and distribution.  What’s that? It’s the state deciding who gets your stuff.  Let’s look at a hypothetical: Sergeant Veteran kills himself, leaving no will, a current wife, an ex-wife, a child of his current marriage and kids from his former marriage.  Many people assume that his current wife will get his whole estate – after all, that’s who he’s married to, right?

Wrong.  His current wife will keep her half of the community property, a third of his separate property that’s not real estate, and a one-third life estate in his separate property real estate.  The kids get the rest.  That means that if she’s living in a house he bought before they were married, she doesn’t own it – his kids do.  They can’t kick her out, but she can’t sell the house.  Even if their house is community property, his kids still end up owning half of it. If he had left his estate to her in his will, she would own everything. Even if he’d left part of his stuff to his children, at least everyone would know who gets what.  Add to the property issue the complexities and expense of an heirship proceeding (the kind of probate that happens when somebody dies without a will), and the process of settling Sergeant Veteran’s estate becomes expensive and time-consuming, adding to the heartache of his passing.

The moral of the story is that, for inheritance purposes, all parties will be very well served by the veteran – whether suffering from PTSD or not – making a will.  As noted, the Jacobson Law Firm, P.C. does estate planning, as do a number of other firms.  There are several low-or-no-cost options as well: The San Antonio Bar Association’s Community Justice Program has a regularly scheduled workshop at the Audie Murphy VA Hospital in San Antonio where veterans and their spouses can get free estate planning done, and the State Bar of Texas has a number of other avenues to assist veterans with their legal needs as well.  If the veteran is retired from the military, any base legal office will prepare these documents at no cost.

As always, the above is legal information, not legal advice, and it’s based on Texas law because I’m a Texas lawyer.

When you need it, it’s too late to get it

As an estate planning and probate lawyer, I occasionally have clients who come in, chat with me and my support staff, fill out an estate planning questionnaire and have me prepare draft documents for them – and then never get around to actually executing the documents.  The reasons vary – sometimes a husband and wife can’t agree on who should raise their kids if they die in a common accident, sometimes they just never “get around to it”.  One of the saddest, most frustrating things that can happen at the firm is the call from the widow or children of a client, informing us that the client has died, when I have to tell the caller that there’s no signed will because the client didn’t follow through.  It happens more than you might think.  Although there are still ways to handle the estate of a person who didn’t have a will, it takes longer, is more complicated (and thus more expensive) and creates unnecessary headaches for all concerned.

The same thing happens with medical powers of attorney, statutory durable powers of attorney and directives to physicians (“living wills”): when you’ve had an accident or a stroke and you can’t communicate with your healthcare providers, it’s too late to fill out a medical power of attorney.  When your mom is suffering from dementia and you need to handle her affairs, it’s too late to have her do a statutory durable power of attorney.

Do yourself and your loved ones a favor: sit down with a good estate planning attorney and talk through your options, then follow through.  They’ll thank you for it, even if you’re already cavorting in heaven and can’t hear them by then.