Most Americans have not executed basic estate planning documents. A study by caring.com found that only 42% of Americans have wills. Even fewer have executed other important estate planning documents:
- A durable power of attorney enables a trusted person to handle your affairs if you become mentally incapable
- A medical power of attorney enables a trusted person to handle your healthcare if you are unable to do so
- A directive to physicians communicates your wishes about medical treatment at some time in the future, but only if your condition is irreversible or terminal. It speaks for you when you cannot speak for yourself.
So, what happens if someone without a directive to physicians suffers a catastrophic injury or illness and is on life support? Can anyone make a determination as to whether life support should be withheld?
In Texas, a decision to terminate life support can be made by the following individuals, in order of priority, if a directive to physicians has not been signed:
- An agent under a medical power of attorney
- The patient’s spouse
- The patient’s adult children
- The patient’s parents
- The patient’s nearest living relatives
- The patient’s court-appointed guardian
A directive to physicians gives Texans the ability to share under what circumstances they would like life-sustaining treatment to be administered or withheld so that those who have to make a very difficult decision will not be emotionally burdened by having to do so without knowledge of the patient’s wishes.
While the lack of such a document does not create a presumption that the patient opposes a decision to withhold life-sustaining treatment, failing to complete it leaves the decision of whether to withhold life sustaining treatment to someone else. And if your family disagrees about what your wishes would be, it can lead to a drawn out legal battle as happened in the Terri Schiavo case.
Even if you have completed an Advanced Directive, it is still important for you to discuss your wishes with your family. If you don’t know where to start, the Conversation Project offers tools, guidance, and resources to begin talking with loved ones about your and their wishes.
Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information and to learn about our firm, please contact us.
