7-5 Texas Advance Directives Act

Effective September 1, 1999, the Advance Directives Act consolidated three areas of Texas law that had previously been found in three different statutes operating without any coordination with each other: (1) the Directive to Physicians and Family or Surro gates (formerly the Natural Death Act); (2) the Medical Power of Attorney (formerly the Durable Power of Attorney for Health Care); and (3) the Out-of-Hospital Do-Not Resuscitate (OOH-DNR) orders.

Before the Advance Directives Act became law in 1999, the three separate statutes, passed in three separate decades, were not well coordinated with each other. Current Texas law on advance directives is uniform and much easier to use.

:1 Directive to Physicians and Family or Surrogates

A competent adult has the right to refuse medical treabnen t for any reason even if such refusal will lead to an otherwise preventable death. But if the person is in a coma, is brain damaged, or for some other reason is unable to communicate his or her wishes, the only way his or her physician, family members, or surrogate medical decision maker would know such wishes would be through a “living will” in which the person would have expressed his or her desire to be or not to be kept alive through the use of medical technology if he or she were ever in a terminal condition and were then unable to communicate his or her wishes to decline or not further life-sustaining treatment.

In 1977, Texas became the fifth state of the union to enact “living will” legislation when the legislature enacted the Natural Death Act. In 1999, the legislature re-codified the Act in the Advanced Directives Act, now found in Sections 166.031-166.051 of the Texas Health and Safety Code.

:1.1·Formal Requirements

As an initial matter, we note that although many people still refer to this instrument as a living will, Texas law no longer uses this term. Instead, the Texas Instrument is nmv called a Directive to Physicians and Family or Surrogates. The statute simply refers to it as a “directive.”

In Texas. any competent adult may execute a directive.25 The dedarant must sign the directive in the presence of two competent adult witnesses,26 at least one of whom is not a person involved in his or her health care.²⁷171e witnesses must also sign the instrument.”

In lieu of signing in the presence of witnesses, the declarant may sign the directive and have his or her signature acknowledged before a notary public.29

7-5:1.2 Notice to Physician

A patient who has executed a directjve must inform his or her attending physician of that fact.30 If the person is incompetent or otherwise mentally or physically unable to communicate. another person may notify the attending physician of the existence of the directive.31 Upon being informed, the attending physician wi11 make that informa tion a part of the declarant’s record.32

7-5:1.3 Form of Written Directive

1l1e Health and Safety Code provides a fill-in-the-blank form for use in creating a directive. We reproduce this form in Appendix 14.

However, the law does not require the use of this form, or of any form provided by a physician, health care facility, or health care professional.:o

Health & Safety Code Section 313.004 -Consent for Medical Treatment

Health and Safety Code Chapter 166. Advance Directives, Chapter 166
Advance Directives

Health & Safety Code Section 166.032 Written Directive by Competent Adult; Notice to Physician

( c ) A declarant may include in a directive directions other than those provided by Section 166.033 (Form of Written Directive) and may designate in a directive a person to make a health care or treatment decision for the declarant in the event the declarant becomes incompetent or otherwise mentally or physically incapable of communication.

( d ) A declarant shall notify the attending physician of the existence of a written directive. If the declarant is incompetent or otherwise mentally or physically incapable of communication, another person may notify the attending physician of the existence of the written directive. The attending physician shall make the directive a part of the declarant’s medical record.

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Medical Power of Attorney

ln the Elder Law context, in a medical power of attorney, the elderly person, as princi pal, appoints an agent to make health care decisions on his or her behalf that he or she could make if he or she were competent.76 Pursuant to the Health and Safety Code, the agent may be anyone except:

l. the principal’s health care provider or his or her employee, unless that person is a relative of the principal: or

2. the principal’s residential care provider or an employee of the residential care provider, unless that person is a relative of the principal.79

The medical power of attorney must be made in writing, and normally must be signed by the principal ini the presence of two witnesses who must themselves sign the document.60The witness requirements are similar to those for a Directive to Phy sicians and Family or Surrogates.st

In lieu of signing in the presence of the witnesses, the principal may sign the medi cal power of attorney and have the signature acknowledged by a notary public.82

If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal’s name in the principal’s presence and at the principal’s express direction.⁸³ Toe person may use a digit.al or electronic signature to “sign” the principal’s name.84

To be effective, the medical power of attorney must be delivered to the agent.8-5 Upon becoming effective, the power of attorney remains effective until it expires-if it contains an expiration date-it is revoked, or the principal becomes competent.⁸⁶

7 -7: 1 Revocation of Medical Power of Attorney

A medical power of attorney can be revoked by the principal making an oral declara tion or handing a written notification to the agent or a licensed or certified health Or’ residential care provider, or by any other act that evidences the principal’s intent to revoke the power.⁸⁷ The principal’s competency or mental state is irrelevant to his or her ability to issue this notification.88

111e principal can also revoke the power of attorney by executing a new one.⁸ Finally, a medical power of attorney is revoked by the divorce of the principal and

his or her spouse if the spouse is named as the principal’s agent, unless the medical

power of attorney provides otherwise.90

:2 Disclosure and Form

Health and Safety Code§ 166.164 provides the form that the principal completes and signs to appoint an agent to make health care decisions. The principal may provide individualized instructions in the section labeled “Limitations of the Decision-Making Authority of My Agent.” The power requires either (1) two witnesses or (2) notariza tion.91 Vve include a sample Medical Power of Attorney Designation of Health Care Agent form in Appendix 16.

:3 Potential Conflicts

Because life is uncertain-even as the end of life approaches-as people view various issues differently, conflicts sometimes arise over the: care of the elderly as the people entrusted with such care fail to always “see ey-e to eye.” Here, we cover a few of these conflicts.

7-7:4 Appointment of a Guardian

If a court appoints a guardian for a principal, the court: will determfae whether it should suspend or revoke the authority of the agent under the medical power of attorney?.? However, because the medical power of attorney expresses the principal’s wishes for his or her health care, he or she could write into the medical power of attorney just what he or she would desire regarding health care and should he or she ever be declared incompetent and be in need of a guardian. That way, when the judge makes

his or her determination, he or she will have the principal’s own words before him or her to consider.

7-5 :5 Conflict Between Advance Directives

In a conflict between any of a patient’s advance. directives, the directive executed later in time has priority.93 Looking specifically at the Directive to Physicians and Family or Surrogates and the medical power of attorney. a connict can arise only if both docu ments name agents who are not the same person. If, however, both instruments name the same person as agent, no conflict will exist. If the Directive to Physicians and Family or Surrogates does not. appoint an agent, it will dominate the medical power of attorney for the simple reason that it speaks directly to the physician, not to an agent who then communicates to the physician the patjent’s wishes.

Further, if the patient has signed only a medical power of attorney, the 1999 Act allows the agent to ,vithhold or withdraw life support systems-and to put the patient into a hospice progra.111.!>’1l1is power did not exist under the law that preceded the 1999 Act.

7-7:6 Duty of Health or Residential Care Provider

A principal’s health or residential care provider must follow the instructions given by the principal’s agent unless he or she feels the instructions are contrary to the principal’s wishes, the law, or the medical power of attorney’s limiting statement.⁹:; ‘That being said, the attending physician does not have a duty to verify that the agent’s directive is consistent with the principal’s wishes or religious or moral beliefs.⁹⁶

:7 Limitations on Liability

An attending physician. a health or residential care provider, or a person acting as an agent for or under the physician’s or provider’s control is not subject to criminal or civil liability and has not engaged in unprofessional conduct for an act or omission if the act or omission:

is done in good faith under the terms of the medical power of attorney, the directives of the agent, and the provisions of the Health and Safety Code; and
does not constitute a failure to exercise reasonable care in the provision of health care services.⁹⁷

7-7:8 Liability for Health Care Costs

The agent is not responsible for paying the bill for the care chosen; indeed, the fact that an agent consents to medical treatment for the principal has no effect 011 the per son financially liable for the costs associated with that care-the principal/patient.98

,Out-of-Hospital Do-Not-Resuscitate Order

TI1e 1995 Texas Legislature authorized a physician. in accordance with his or her patient’s wishes or the wishes of the patient’s legally authorized representative, to issue an order directing health care professionals acting in out-of-hospital settings to refrain from initiating or continuing certain life-sustaining procedures. These provisions were re-codi.fied in 1999 as part of the Advance Directives Act. This order is designated as an OOH-DNR order. OOH-DNR orders are effective when a patient, in a terminal condi tion, is in a set1ing such as a long-term care facility, hospice, or even a private home and health care professionals are called for assistance.’)’)The order also applies to situations where the person is in transport in an ambulance or other vehicle.¹⁰⁰

7-8.1 Life-Sustaining Procedures Covered by the Out-of Hospital DNR Order

TI,e OOH-DNR order is effective only with respect to certain specified life-sustaining procedures including:

cardiopulmonary resuscitation;
advanced airway management;
artificial ventilation;defibrillation;transcutaneous cardiac pacing; and
other life-sustaining treatment specified by the Texas Board of Heath.¹⁰¹
An OOH-DNR order may not authorize the withholding of any treatment designer to provide comfort. care. or pain relief, or the withholding of water and/or nutrition.¹‘

7-8:2 Requirements for the Out-of-Hospital DNR Order

TI1e requirements for an OOH-DNR are provided for in Health and Safety Code

§ 166.082.

:3 Rules Governing Execution

A competent person any at: any time execute an OOH-DNR order.103 TI1e declarant must sign the OOH-DNR order in the presence of nvo witnesses, both of whom qualify under Health and Safety Code 8 166.003 and at least one of whom must be a witness who quali fies under Health and Safety Code§ 166.003(2). ·111e witnesses must sign the order. The

declarant’s attending physician must sign the order, and must make the fact of the order’s existence and the reasons for its execution a part of the declarant’s medical record.1 1 in lieu of signing in front of witnesses. the declarant may sign the OOH-DNR order and have the signahire acknowledged before a notary public.105

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