Medical Powers of Attorney and Directives

What is a Living Will?

by Rania Combs

A living will, or directive to physicians, is a document that allows you to instruct your physicians not to use artificial methods to extend your life in the event you are diagnosed with a terminal or irreversible condition.

Who may execute a directive to physicians?

Any competent adult can execute a written directive in the presence of at least two witnesses. The witnesses need to be competent adults. At least one of the witnesses cannot be a person who:

  1. has been designated by you to make health care treatment decisions on your behalf
  2. is related to you by blood or marriage
  3. is a beneficiary of your estate
  4. has a claim on your estate
  5. is your attending physician
  6. is employed by your attending physician
  7. is an employee of a health care facility in which you reside, if the employee is involved in providing direct care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.

In lieu of signing in the presence of witnesses, you can sign the directive and have your signature acknowledged before a notary public. But it properly signed in the presence of witnesses, the directive to physicians is effective regardless of whether it has been notarized. No physician, health care professional or health care facility may require that the directive be notarized.

When does a directive to physicians become effective?

A directive to physicians becomes effective when you become a “qualified patient.” A “qualified patient” is a patient with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician. If you sign a directive, you should tell your doctor and have the directive made part of your medical records.

Can a minor have a directive to physicans?

If a person under the age of 18  is a “qualified patient”, a directive to physicians can be executed on his or her behalf by a parent, an adult spouse, or a legal guardian. A competent minor can demand life-sustaining treatment regardless of whether a directive exists.

Does my directive have to be in writing?

If you are a competent adult who is a “qualified patient”, you can issue a directive verbally in the presence of your attending physician, and two qualified witnesses. When you do that, the doctor will make record your directive and the names of the witnesses in your medical records.

Can I revoke a directive to physicians?

A directive to physicians can be revoked at any time, even in the final stages of a terminal illness. You can revoke your directive orally or in writing.

If you revoke your directive, you must notify your physician of your decision, which your physician will then note in your medical records. You can demand that life-sustaining treatment regardless of what your directive provides.

About Rania

Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.

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  1. Paul

    March 4, 2019 at 2:53pm

    Does someone with a medical power of attorney have authority to override a Living Will or vice versa? What considerations come to mind for possible overlap.

    1. Rania Combs

      April 24, 2019 at 5:17pm

      Powers of attorney typically include a statement that requires the agent to direct to comply with any valid Living Will.