Advanced Directive

What is a Living Will, and When Might You Need One?

Published on: October 7, 2024 | By David W. Miller

It is important to familiarize yourself with different tools and strategies in the world of estate planning. Each person’s estate is different, and each person’s priorities are different when drafting their estate plan. One tool that many individuals often overlook is the living will. On today’s blog, we review the basics of the living will, as well as when you might need one and how you can go about beginning to attain one.

The Living Will

By definition, a living will is a legal document that lists your wishes with regards to medical treatment in the event of your incapacitation. If you become seriously ill, unconscious, or cognitively impaired, you will need a living will to instruct your loved ones on your medical preferences. The living will does not take effect when you are sick but still able to make decisions for yourself. It only applies when you are strictly incapacitated, and you are unable to decide what kind of care you want or need.

Some clauses that individuals typically include in a living will include: a provision about possible resuscitation, instructions regarding a ventilator or feeding tube, and the designation a healthcare proxy to make decisions in your best interest. Importantly, your living will should be as specific as possible so that there is no confusion on how you would want to move forward regarding your medical care. You should also make sure to update your living will every few years, in case there are any changes to your health or to your own individual goals.

Who Makes Your Health Care Decisions if You Can’t?

Published on: November 22, 2022 | By David W. Miller

In the event of an unfortunate health emergency, you may become incapacitated. If you are incapacitated, you will not be able to make the decisions needed to consent to and direct your own medical care. The law provides for a plan in this unfortunate event. But the law’s provisions may not be sufficient to ensure your plans are executed according to your wishes. Advance directives can help.

If you do not have any advance directives in place, someone may still be available to make health care decisions for you. If you are incapacitated in Texas, the following can still make decisions and consent to treatment for you: your spouse, your adult child or children (either a majority or one designated to make such choices by your other children), your parents, a person you identified to make decisions for you before you lost capacity, or a nearest living family member or clergy member. The priority goes in order from first to last. If relevant parties disagree, the judge of a Texas probate court will make that decision.

Types of Advance Directives

If this priority-ranked system sounds stressful and you’re worried your wishes will not be accurately carried out, consider putting advance directives in place. Some advance directives allow you to outline your care without the need to name a third party to make decisions for you. These include directives to physicians and family or surrogates, or living wills, out-of-hospital do-not-resuscitates (DNRs), and declarations for mental health treatment. In Texas, living wills lay out your requirements for life-sustaining measures in the event you have a condition certified by two physicians as terminal. DNRs give emergency medical professionals, who cannot follow living wills, instructions not to resuscitate you. And declarations for mental health treatment help you make advance decisions about the type of mental health treatment you would like to receive in a mental health emergency, such as medication and therapy, in the event a court declares you incapacitated.

How the COVID-19 Pandemic Has Texans Reevaluating Their Estate Plans

Published on: December 30, 2021 | By McCulloch & Miller, PLLC

The COVID-19 pandemic has impacted every aspect of life. From health concerns to mental well-being, people approach everyday life—and their future—differently than they did prior to March of 2020. Because of these changes, people are considering their goals and how to secure the financial security of loved ones in case they were to get sick. This can all be accomplished through estate planning. By creating health care and financial-related documents as part of an estate plan, Texans can ensure their affairs are in order before the need arises. Below are a few types of documents that all individuals should include in their estate plan, along with descriptions for why these directives are necessary.

Advance Health Care Directive and Medical Power of Attorney

An advance health care directive is a legal document that details the type of medical care an individual wants to receive if they are incapacitated and cannot make the choice for themselves. When crafting this document and deciding on the level of care a person would want, it is important to take into account one’s family medical history and potential treatments they would not want. The more detail an individual provides in their advance health care directive, the better.

What is an Advance Directive and Why Do I Need One?

Published on: May 5, 2021 | By McCulloch & Miller, PLLC

Many Texans have considered the medical care they would want if they were extremely ill. However, if these wishes are not written down, family members or medical professionals may act in a way contrary to what the person would have intended. In order to ensure this does not happen, people can create an advance healthcare directive.

Advance directives are a legal document that expresses a person’s decisions related to end-of-life care. Below is a more detailed explanation of what to include in a Houston advance healthcare directive, along with the repercussions of not making one.

Why Advance Directives are Critical

Why Texans Need an Advanced Health Care Directive

Published on: January 21, 2021 | By McCulloch & Miller, PLLC

While individuals often think about who would receive their assets when they die, they do not always think about the medical care they want if they cannot speak for themselves. This is a critical aspect in the Houston estate planning process, called an advanced health care directive. An advanced health care directive is unique to each individual, and it can often be confusing to know what should be included in such a directive. Below are common questions that Texans have about health care directives and how to implement one as part of their estate plan.

What is a Health Care Directive?

A health care directive allows an individual to express their values and desires related to end of life care. A person can adjust their health care directive as their situation changes because of new information or a change in their health. Research has shown that advance directives often make a difference: individuals who document their preferences are more likely to receive their preferred care at the end of their life than people who do not document their wishes.

The Importance of Creating Texas Advanced Planning Directives

Published on: May 18, 2020 | By McCulloch & Miller, PLLC

Estate planning and advanced directives are a critical step that Texans can take to ensure that their wishes are effectuated if they become incapacitated or pass away unexpectedly. Estate planning is essential for all individuals, despite their wealth or age. Although, in some cases, Texas law provides residents with tools to create these documents on their own, it is vital that individuals consult with a Houston estate planning attorney to make sure that their documents are valid.

In creating Houston advanced care documents, individuals should include both health-related and financial planning directives. The three most essential parts of a person’s health-related advance planning documents are a medical power of attorney designation, directive to physicians (living will), and out-of-hospital do-not-resuscitate (DNR) instructions. These documents will provide doctors, healthcare providers, and family members with guidance on how to proceed with a loved one’s care. They remain in effect unless an individual revokes or changes them.

Medical Power of Attorney (MPOA)

How Powerful are Powers of Attorney?

Published on: December 4, 2019 | By McCulloch & Miller, PLLC

It’s easy to focus most of the estate planning attention on the will and distribution of assets. However, a power of attorney is often as important as a will.

Naming a person to take on the role of Power of Attorney is not easy. For some families, it can hang up the entire estate planning process.

Forbes’ article, “9 Things You Need To Know About Power Of Attorney,” reminds us that it’s an important decision and not one that should be taken lightly. Let’s look at what you need to know to get your POA right.

Why Estate Planning Matters for People Without Children

Published on: November 27, 2019 | By McCulloch & Miller, PLLC

Estate planning is even more important for individuals and couples without children. Without an estate plan, your assets may go to long-lost relatives you’ve never met. You also need to plan for incapacity, especially if there are no living relatives.

While your legacy may be different if you don’t have children, you still need to have an estate plan.

Motley Fool’s article, “5 Estate-Planning Tips for Child-Free Couples,” suggests that you may want to leave some of your money to friends, family members, charitable organizations, or your college. No matter the beneficiaries you choose, these estate planning tips are vital for childless couples.

Helping Parents Be Sure Their Families are Protected

Published on: September 30, 2019 | By McCulloch & Miller, PLLC

Yes, it is old-school, but if your family is on the traditional side, headed up by a breadwinner dad who runs the finances, then you need to make plans to ensure that your family will be okay, if something should happen to you.

This advice also applies to mothers who are the main breadwinners and run their family’s finances, even though the title of this Forbes article is “How Fathers Can Make Sure Their Families Are Financially Protected.”

Do you have enough life insurance? Be sure you’re adequately insured, so your family won’t struggle to pay the bills without your income. Many employees only have enough life insurance from work to cover a year’s worth of salary, which may be enough for some families. However, if your spouse can't make the mortgage payment on their own, and if they would be unwilling or unable to sell the home, you might want to at least make sure you have enough life insurance to pay off the mortgage. Once you know how much you need, buy a low-cost term policy for the maximum length of time you might need the coverage.

How Advance Directives Are Used When the Diagnosis is Dementia

Published on: July 26, 2019 | By McCulloch & Miller, PLLC

The progressive nature of dementia makes advance directives necessary to manage the health care needs of the patient.

When adult children suspect that one or both of their parents may be suffering from the early symptoms of dementia, it’s a good idea to sit down with an experienced elder care attorney to start planning for the legal issues that will follow, says The Roanoke Times in the article “What to do in absence of advance directive.” If the parent is unwilling to cooperate, the attorney will be able to refer the family to a social worker or other professional who may be able to assist. In addition, a geriatric evaluation consultation with a board-certified geriatrician will help to clarify the medical issues.

It’s wise for anyone older than 55 to have advance directives in place, should they become incapacitated so a trusted agent can fulfill the patient’s wishes in a dignified manner. Think ahead and plan ahead.