Where you live could determine how you die.
Ten states have approved a form of physician-assisted suicide. While the specifics may differ, so far all the states require the individual to be of sound mind and in their last six months of life to be eligible. Most also require that the individual be a resident of that state for a prescribed length of time. The commonly approved method for suicide is medication prescribed by a physician. Some states refer to it as “Aid-in-Dying” or “Death with Dignity.”
Physician-Assisted Suicide in Texas
Texas does not allow physician-assisted suicide. It does not authorize mercy killing or permit a deliberate act or omission to end life. That prohibition includes intentionally taking medication to commit suicide.
Texas does, however, allow you to take steps to make sure that you are allowed to die naturally.
You can do this by instructing that life-sustaining treatments be withheld or withdrawn. “Life-sustaining treatments” includes medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, feeding tubes and IVs used for hydration.
Your instructions are only effective in two situations. The first situation is that you have been diagnosed with an irreversible condition that can never be cured, leaving you unable to care for or make decisions for yourself, and that will be fatal if you don’t have life-sustaining treatment. The second situation is that you have been diagnosed with a terminal condition that will cause your death within six months even with a life-sustaining treatment.
Directive to Physicians Requirements
You should give the instructions well in advance of being diagnosed with an irreversible or terminal condition by signing a document called a Directive to Physicians. You must sign the form in front of two witnesses. You and your witnesses can sign the document on paper, digitally or electronically.
You can also give your instructions verbally in front of two witnesses.
There are specific requirements for the witnesses to forestall any shady dealings. Both the witnesses must be adults, and at least one must be completely disinterested. That is, the person cannot be your relative, health care agent, heir or will beneficiary, affiliated with your attending physician of the health care facility, or your creditor.
If you don’t want to use witnesses, then you can also just sign in front of a notary. You do not need to have both witnesses and a notary present.
There is a statutory form for the Directive that is found in the Texas Health and Safety Code, but you are not obligated to use that specific form. Your physician and health care facility cannot require you to use a particular form. You can customize your Directive to provide for any number of eventualities.
Once you have issued your instructions, they are binding on the world. That includes your relatives, your agents, your doctor, and your hospital. They are not, however, binding on you. You can revoke them at any time verbally, in writing, or by physically destroying the paper. While you need to have capacity to issue the instructions, you need not have capacity to revoke or change your instructions.
Your instructions go into effect once your attending physician has certified in writing that you are a “qualified patient,” meaning that you have a terminal or irreversible condition. However, if you are pregnant, then the instructions will not be effective for the term of your pregnancy.
Nothing in the Directive can prohibit care that keeps you comfortable.
A Directive to Physicians should be part of your estate plan.
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Virginia Hammerle is in her fourth decade of practicing law. She is Board Certified in Civil Trial by the Texas Board of Legal Specialization and an Accredited Estate Planner. Contact her at email@example.com or visit www.hammerle.com. This column does not constitute legal advice.