A Living Will Isn’t a Death Sentence

By The Jacobson Law Firm, P.C.

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.