End-of-Life Documents: Planning for the future
Note: This publication is for informational purposes only. Consult an attorney certified in estate planning and probate law for legal advice.
It’s increasingly important for families to plan for their health care decisions. End-of-Life documents, including wills, powers of attorney, advance directives, and anatomical gifts, to ensure your wishes are honored.
Wills
Wills are critical for dictating asset distribution after death. In Texas, various types of wills are recognized, and they can be made self-proving to simplify probate. Without a will, Texas law determines asset division (see Real Estate Center publications No. 2001, “Self-Proving Wills,” and No. 2019, “Where There’s No Will…”).
Advanced Directives
Medical Power of Attorney
A Power of Attorney (POA) allows you (the principal) to designate an attorney-in-fact or agent to manage your assets. This trusted individual, often a spouse, acts in your best interests. A POA can be general (allowing broad authority) or special (limited to specific tasks).
Durable Power of Attorney
A Durable POA remains effective despite your disability or incapacity, as specified by statements like, “This power is not affected by subsequent disability or incapacity of the principal.” It must:
Designate an agent.
Be signed by an adult principal.
Include durability language.
Be acknowledged before a notary or authorized officer.
This document prevents court-appointed guardianship, though it terminates upon a permanent guardian’s appointment or the principal’s death. Since September 1, 2015, Texas law (Section 751.151, Estates Code) requires county clerks to record real estate transactions under a durable POA within 30 days. Additionally, Section 1101.005 of the Occupations Code mandates a real estate license for agents conducting more than three real estate transactions annually under a POA, so limiting transactions to three or fewer in the document’s Special Instructions is advisable.
Form: Statutory Durable Power of Attorney (Texas Estates Code, Sections 752.101–752.114).
The Texas Advance Directives Act (Chapter 166, Texas Health & Safety Code) governs Living Wills, Medical Powers of Attorney (MPOA), and Out-of-Hospital Do Not Resuscitate (DNR) Orders. These documents allow competent adults to outline medical treatment preferences or delegate decision-making authority.
Execution and Witnesses
Advance directives must be signed before two qualified witnesses or a notary. Qualified witnesses must be competent adults, with one not being:
The designated agent.
A relative by blood or marriage.
An heir to the declarant’s estate.
The attending physician or their employee.
A health care facility employee providing direct care or holding certain administrative roles.
Someone with a claim against the declarant’s estate.
The declarant or another must notify the attending physician of a directive’s existence, which is then recorded in the medical record.
Revocation
Directives remain effective until revoked by:
Destroying the document.
Signing a written revocation.
Orally stating intent to revoke, communicated to the attending physician.
Revocations are recorded, and “VOID” is marked on the directive in the medical record.
Living Wills
Living Wills outline treatment preferences for terminal (death expected within six months) or irreversible conditions (untreatable, fatal without life-sustaining treatment). Options include:
Withholding life-sustaining treatments (except comfort care) for a gentle death.
Continuing life-sustaining treatments (unavailable in hospice).
Additional requests can specify treatments like artificial nutrition. If no MPOA exists, a proxy can be named to make decisions. The statutory form (Section 166.033, THSC) provides examples for conditions like cancer or Alzheimer’s.
A Power of Attorney (POA) allows you (the principal) to designate an attorney-in-fact or agent to manage your assets. This trusted individual, often a spouse, acts in your best interests. A POA can be general (allowing broad authority) or special (limited to specific tasks).
Durable Power of Attorney
A Durable POA remains effective despite your disability or incapacity, as specified by statements like, “This power is not affected by subsequent disability or incapacity of the principal.” It must:
Designate an agent.
Be signed by an adult principal.
Include durability language.
Be acknowledged before a notary or authorized officer.
This document prevents court-appointed guardianship, though it terminates upon a permanent guardian’s appointment or the principal’s death. Since September 1, 2015, Texas law (Section 751.151, Estates Code) requires county clerks to record real estate transactions under a durable POA within 30 days. Additionally, Section 1101.005 of the Occupations Code mandates a real estate license for agents conducting more than three real estate transactions annually under a POA, so limiting transactions to three or fewer in the document’s Special Instructions is advisable.
Form: Statutory Durable Power of Attorney (Texas Estates Code, Sections 752.101–752.114).
Out-of-Hospital DNR Orders
Anatomical Gifts
DNR Orders direct health care professionals in out-of-hospital settings (e.g., homes, hospices) to withhold life-sustaining treatments like CPR or defibrillation. They must be signed by the declarant or agent, a physician, and either two witnesses or a notary. Identification devices (bracelets or necklaces) confirm validity. Health professionals must verify the order’s completeness and the patient’s identity. Incomplete orders may be ignored. The form, recommended by the Texas Department of State Health Services, meets 17 requirements (Section 166.083, THSC). Statutory Requirements for DNR Order.
The Revised Uniform Anatomical Gift Act (Section 692A.001, THSC) allows competent adults, emancipated minors, or agents to donate body parts for transplantation, therapy, research, or education. Gifts can be made via:
Driver’s license/ID card statement.
A will.
A statement during terminal illness to two witnesses (one disinterested).
A donor registry.
Gifts are revocable before death, and driver’s license revocations don’t invalidate them. If no refusal is documented, agents or family may donate on your behalf. The Glenda Dawson Donate Life-Texas Registry maintains donor information. Conflicts with advance directives require resolution by the donor, agent, or an ethics committee.
Form: Anatomical Gifts.