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Living Wills and Medical Powers of Attorney

Living wills are also known as advanced medical directives and healthcare directives.  Unlike official wills, which are effective upon your death, living wills are legally binding documents that state your medical preferences in the event that you become incapacitated while still living.  A living will lets your physicians and family members know, for instance, whether you want to be kept alive by a respirator.  Under Texas living wills laws, doctors who are unwilling to follow a durable power of attorney (perhaps for religious reasons) must make an effort to transfer the patient to another physician.Living wills differ from a medical power of attorney because living wills only related to situations where you are terminally ill or have an irreversible condition and you are unable to communicate whether or not you would like life-sustaining treatments to be continued. A medical power of attorney is much broader, because it covers all healthcare decisions for you, whether or not you are suffering from a terminal condition or have an irreversible condition.In order to be legally valid, living wills and Medical Powers of Attorney need to be either notarized or signed by two witnesses.  If you choose to have it signed by two witnesses, then each witness must be a competent adult. Likewise, at least one of the witnesses must be someone who does not fit any of the descriptions below:
  • a person you are designating as your agent to make medical decisions for you;
  • a person related to you by blood or marriage;
  • a person who would inherit something from your estate upon your death;
  • a person who has a claim on your estate;
  • your attending physician;
  • an employee of your attending physician; or
  • an employee of the health care facility that you are in at the time if the employee is providing direct patient care to you or if that employee is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.
The best way to prevent having your wishes disregarded is to have your living will and medical power of attorney notarized rather than getting it signed by two witnesses.

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*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.

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