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San Antonio Express-News
Copyright 2009, Paul Premack
November 3, 1989

*You Must Replace "Living Will" with Natural Death Directive*

The idea that life should not be artificially sustained when there is no hope of normal life has become widely accepted in the last decade. Many people cringe at the thought of being hooked to life support machines, sustained after their time has passed.

A statutory "Directive to Physicians" helps you avoid the emotional and monetary cost of lingering death, but (contrary to popular belief) a "living will" is a false and unenforceable promise of help.

Do not rely on a living will. If you have one, it is not enforceable. Your "Living Will" should be replaced with a "Directive to Physicians" (available for a nominal cost from our Virtual Law Office).

A "living will" is broad, usually stating that "if there is no reasonable expectation that I will recover..." from an illness, that "it is my wish that I be allowed to die". Though it is a meaningful expression of intent, a living will cannot guarantee your wishes will be followed.

The Texas "Directive to Physicians" is your instructions to remove artificial life support when death is imminent (or might result within a relatively short time) due to existence of a terminal condition.

You must sign your Directive in front of two qualified witnesses. The Texas Natural Death Act (which in 1999 became the "Advance Directives Act") says you must have a "terminal condition" for life support to be removed. The doctors must continue to provide comfort and relieve pain.

The goal of our law is to allow death to come naturally: no sooner, no later. Texas does not allow any deliberate act to end a life.

Your physician must comply with the Directive. If he or she refuses, your doctor must transfer your care to another physician. Your physicians, nurses, and health care facilities are not subject to civil liability unless negligent. They may not be accused of any criminal act or of unprofessional conduct unless negligent.

Variations, such as making the directive orally or appointing someone to make the decision for you, are allowed. Each of these options is surrounded by problematic technicalities.

The technical requirements of the Act far remove it from the realm of simple "living wills". Death with dignity is possible. If freedom from machines and artificial intervention is your preference, replace your "living will" with a "Natural Death Directive".

Prior Column: Medical Power of Attorney
Next Column: Durable Power of Attorney

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.