When his father was approaching death, Dylan Thomas wrote what became his most famous lines, pleading with his father to hold on as long as he could:
“Do not go gentle into that good night,/Old age should burn and rave at close of day;/Rage, rage against the dying of the light.”
What does Thomas’s poem have to do with estate planning? Well, you may not have known this, but the law allows you to decide whether or not you would like to “go gentle into that good night” or to “rage against the dying of the light.” The mechanism for doing this is the advanced directive or living will, and it’s the first of the four key estate-planning documents we’ll look at:
Is a “living will” different than a “will?”
Yes, very much so. Your will disposes of your property at death. Your living will decides whether or not you would like to be kept alive by artificial means if you are suffering a terminal illness. They are very different documents.
It trips clients up all the time. I often am told by someone that they had a “living will” drawn up some years ago leaving everything to their wife. Well, no, that would be a will; a living will doesn’t dispose of property. Or, it could be a living trust, which acts more like a will than a living will does … It …bwell, talk to an attorney to make sure you have the right documents.
So, what does a living will or directive do, again?
It allows you to decide, in writing, if you want to be kept alive by artificial means if you are suffering a terminal illness or, rather, if you want to be allowed to die as gently and painlessly as possible. To put it crudely, it tells your doctor and the hospital whether or not to “pull the plug” when the time comes.
Why is it so important?
It saves your family from having to make an impossibly difficult decision when the time comes. If they know your wishes, it will save them a lot of guilt and anguish in deciding to either let you die peacefully or to keep fighting to the bitter end. It’s hard enough losing a loved one without having to make the call on whether or not to let them go.
When does it take effect?
You have to be both (1) incapacitated, and (2) suffering either a terminal condition or an irreversible condition. Incapacitated means you can’t make decisions for yourself; often it means you are comatose or otherwise non-responsive. A terminal condition is one that you will die from in six months even with available treatment. An irreversible condition is both incurable and leaves you unable to make decisions for yourself. All of this has to be certified in writing by your physician. Both are extreme conditions; so the directive will only take effect if you truly are at the end of life.
Does this have something to do with “death panels?”
No. This has nothing to do with “death panels.” People have been using directives in Texas long before anyone came up with the term “death panels.” It is designed to honor your wishes, not to short circuit them through your doctor or insurance company or anyone else. You should not be afraid to sign a directive.
What if I change my mind?
The directive only takes effect upon your incapacity, so, as long as you are conscious and capable of making decisions, you can instruct your physician as to your wishes, and, of course, you can always have a new directive drawn up to reflect that you’ve changed your mind.
Are there any situations where a directive is not honored?
Texas law will not give effect to a directive if you are diagnosed as pregnant.
Is there any special language required?
Not required, but strongly suggested. Chapter 166 of the Texas Health and Safety Code governs directives, and the suggested language for the directive appears in section 166.033. Though this language is not mandatory, most careful estate planners will adhere to it pretty closely, since it’s the language that health care providers will be looking for when the time comes.