TEXAS - ADVANCE DIRECTIVES FOR HEALTH CARE (LIVING WILLS)

January 1, 2008

State laws and regulations that affect your medical practice

1. What is an advance directive for health care?

A competent adult may at any time execute written instructions to administer, withhold or withdraw life-sustaining treatment in the event of a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician.

Texas Statutes § 166.031

A. Competent adults have the fundamental right to control decisions about their health care. In order that this right should not be lost in the event a patient loses decision making capacity, Texas recognizes the right to plan ahead for health care decisions through the execution of advance directives.

B. Modern advances in science and medicine have made possible prolonging the lives of seriously ill individuals without always offering the prospect of improvement or cure. While for some individuals, the possibility of extended life is desirable, for other individuals, the artificial prolongation of life is seen as extending suffering and prolonging the dying process. Texas recognizes the inherent dignity and value of human life and within this context recognizes the fundamental right of individuals to make health care decisions to have life-prolonging treatments withheld or withdrawn.

C. The right of individuals to forego life-sustaining measures is not absolute and is subject to certain interests of society. These interests include the preservation of life, the protection of individuals from purposeful self-destruction, motivated by a specific intent to die; the protection of innocent third parties (i.e. minor children) who may be harmed by the patient's decision to forego therapy; safeguarding the ethical integrity of the health care professions; and ensuring the soundness of health care decision making.

3. How is an advance directive prepared and can it be modified or revoked?

A. An advance directive for health care can be executed at any time.

B. Two competent adult witnesses must sign the advance directive. One witness may not be a person designated to make treatment decisions for the patient and may not be related to the patient by blood or marriage.

B. A written directive is effective without regard to whether the document has been notarized and a physician, health care facility, or health care professional cannot require that it is notarized or that the patient use a form provided by the physician, health care facility or health care professional.

C. A written directive MAY (but need not be) in the following form:

DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES

Instructions for completing this document:

This is an important legal document known as an Advance Directive. It is designed to help you communicate your wishes about medical treatment at some time in the future when you are unable to make your wishes known because of illness or injury. These wishes are usually based on personal values. In particular, you may want to consider what burdens or hardships of treatment you would be willing to accept for a particular amount of benefit obtained if you were seriously ill.

You are encouraged to discuss your values and wishes with your family or chosen spokesperson, as well as your physician. Your physician, other health care provider, or medical institution may provide you with various resources to assist you in completing your advance directive. Brief definitions are listed below and may aid you in your discussions and advance planning. Initial the treatment choices that best reflect your personal preferences. Provide a copy of your directive to your physician, usual hospital, and family or spokesperson. Consider a periodic review of this document. By periodic review, you can best assure that the directive reflects your preferences.

In addition to this advance directive, Texas law provides for two other types of directives that can be important during a serious illness. These are the Medical Power of Attorney and Out-of-Hospital Do-Not-Resuscitate Order. You may wish to discuss these with your physician, family, hospital representative, or other advisers. You may also wish to complete a directive related to the donation of organs and tissues.

DIRECTIVE

I, ________________________, recognize that the best health care is based upon a partnership of trust and communication with my physician. My physician and I will make health care decisions together as long as I am of sound mind and able to make my wishes known. If there comes a time that I am unable to make medical decisions about myself because of illness or injury, I direct that the following treatment preferences be honored:

If, in the judgment of my physician, I am suffering with a terminal condition from which I am expected to die within six months, even with available life-sustaining treatment provided in accordance with prevailing standards of medical care:

_______ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; or

_______ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE).

If, in the judgment of my physician, I am suffering with an irreversible condition so that I cannot care for myself or make decisions for myself and am expected to die without life-sustaining treatment provided in accordance with prevailing standards of care:

_______ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; or

_______ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE).

Additional requests: (After discussion with your physician, you may wish to consider listing particular treatments in this space that you do or do not want in specific circumstances, such as artificial nutrition and fluids, intravenous antibiotics, etc. Be sure to state whether you do or do not want the particular treatment).

________________________________________________________________________________________________________________________________________________________________________________________________________________________

After signing this directive, if my representative or I elect hospice care, I understand and agree that only those treatments needed to keep me comfortable would be provided and I would not be given available life-sustaining treatments.

If I do not have a Medical Power of Attorney, and I am unable to make my wishes known, I designate the following person(s) to make treatment decisions with my physician compatible with my personal values:

1.

2.

(If a Medical Power of Attorney has been executed, then an agent already has been named and you should not list additional names in this document).

If the above persons are not available, or if I have not designated a spokesperson, I understand that a spokesperson will be chosen for me following standards specified in the laws of Texas. If, in the judgment of my physician, my death is imminent within minutes to hours, even with the use of all available medical treatment provided within the prevailing standard of care, I acknowledge that all treatments may be withheld or removed except those needed to maintain my comfort. I understand that under Texas law this directive has no effect if I have been diagnosed as pregnant. This directive will remain in effect until I revoke it. No other person may do so.

Signed ___________________________________________________ Date _______

City, County, State of Residence __________________________________________

Two competent adult witnesses must sign below, acknowledging the signature of the declarant. The witness designated as Witness 1 may not be a person designated to make a treatment decision for the patient and may not be related to the patient by blood or marriage. This witness may not be entitled to any part of the estate and may not have a claim against the estate of the patient. This witness may not be the attending physician or an employee of the attending physician. If this witness is an employee of a health care facility in which the patient is being cared for, this witness may not be involved in providing direct patient care to the patient. This witness may not be an officer, director, partner, or business office employee of a health care facility in which the patient is being cared for or of any parent organization of the health care facility.

Witness 1 ___________________________________

Witness 2 ____________________________________

DEFINITIONS

"Artificial nutrition and hydration" means the provision of nutrients or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the stomach (gastrointestinal tract).

"Irreversible condition" means a condition, injury or illness:

(1) that may be treated, but is never cured or eliminated;

(2) that leaves a person unable to care for or make decisions for the person's own self; and

(3) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.

Explanation: Many serious illnesses such as cancer, failure of major organs (kidney, heart, liver or lung), and serious brain disease such as Alzheimer's dementia may be considered irreversible early on. There is no cure, but the patient may be kept alive for prolonged periods of time if the patient receives life-sustaining treatments. Late in the course of the same illness, the disease may be considered terminal when, even with treatment, the patient is expected to die. You may wish to consider which burdens of treatment that you may wish to discuss with your physician, family, or other important persons in your life.

"Life sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificial hydration and nutrition. The term does not include the administration of pain management medication, the performance of a medical procedure necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.

"Terminal condition" means an incurable condition caused by injury, disease or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.

Explanation: Many serious illnesses may be considered irreversible early in the course of the illness, but they may not be considered terminal until the disease is fairly advanced. In thinking about terminal illness and its treatment, you again may wish to consider the relative benefits and burdens of treatment and discuss your wishes with your physician, family, or other important person in your life.

E. If the patient wants to reaffirm or modify his advance directive, this can be done by following the steps in (B) above. An advance directive may be revoked at any time without regard to the patient's mental state or competency in the following manner:

1. The patient or someone in the patient's presence and at the patient's direction canceling, defacing, obliterating, burning, tearing, or otherwise destroying the directive;

2. The patient signing and dating a written revocation that expresses the patient's intent to revoke the directive; or

3. The patient orally stating the patient's intent to revoke the directive.

F. Designation of a spouse as a health care representative (proxy) shall be revoked upon divorce or legal separation.

G. An incompetent patient may suspend an advance directive by any of the means stated in (C)(1). To reinstate a suspended advanced directive, an incompetent patient must provide their health care representative, physician, nurse or other health care professional with oral or written notification of their intent to reinstate the advance directive.

Texas Statutes § 166.032, § 166.033, § 166.036, § 166.038 and § 166.042

4. What if the patient is pregnant?

A person may not withdraw or withhold life-sustaining treatment from a pregnant patient.

Texas Statutes § 166.049

5. Is mercy killing condoned in Texas?

No. Texas does not condone, authorize or approve mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying.

Texas Statutes § 166.050

6. What if the attending physician refuses to honor a patient's advance directive to withdraw life-sustaining treatment, or, in the alternative, determines that honoring a patient's wishes to remain on life-sustaining treatment would be futile?

A. The physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.

B. The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:

1. May be given a written description of the ethics or medical committee review process and any other policies and procedures adopted by the health care facility;

2. Shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement;

3. At the time of being so informed, shall be provided:

a. a copy of the appropriate statement;

b. a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer; and

4. Is entitled to:

a. Attend the meeting; and

b. Receive a written explanation of the decision reached during the review process.

C. The written explanation must be included in the patient's medical record.

D. If the attending physician, the patient, or the person responsible for the health care decisions of the individual does not agree with the decision reached during the review process, the physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive.

E. If the patient of the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer. The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision is provided to the patient or the person responsible for the health care decisions of the patient.

1. If during a previous admission to a facility a patient's attending physician and the review process have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, subsections (B) through (E) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted.

F. Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period under subsection (E) has expired.

G. At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate court shall extend the time period provided under subsection (E) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.

Texas Statutes § 166.046

7. Who may execute a directive on behalf of a qualified patient who is younger than 18 years of age?

A. The patient's spouse, if the spouse is an adult;

B. The patient's parents; or

C. The patient's legal guardian.

Texas Statutes § 166.035

8. What is an Out-of-Hospital Do Not Resuscitate (DNR) order?

A. A patient must sign an out-of-hospital DNR order in the presence of two witnesses who must also sign the order. A DNR order directs health care professionals acting in an out-of-hospital setting not to initiate or continue the following life-sustaining treatment:

1. Cardiopulmonary resuscitation;

2. Advanced airway management;

3. Artificial ventilation;

4. Defibrillation;

5. Transcutaneous cardiac pacing; and

6. Other life-sustaining treatment.

B. A DNR order does not include authorization to withhold medical interventions or therapies considered necessary to provide comfort care or to alleviate pain or to provide water or nutrition.

Texas Statutes § 166.081 and § 166.082

8. Are DNR orders applicable to pregnant patients?

No. A person may not withhold cardiopulmonary resuscitation or certain other life-sustaining treatment from a person known by the responding health care professionals to be pregnant.

Texas Statutes § 166.098

9. What is a Medical Power of Attorney and when is it applicable?

A. A Medical Power of Attorney refers to an adult (also called an "agent") to whom authority to make health care decisions is delegated by a patient.

B. The agent may make any health care decision on the patient's behalf that the patient could make if competent.

C. An agent may exercise authority only if the patient's attending physician certifies in writing and files the certification in the patient's medical record that, based on the attending physician's medical judgment, the patient is incompetent.

D. An agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, abortion, or neglect of the patient through the omission of care primarily intended to provide for the patient's comfort.

Texas Statutes § 166.152

10. Who may not exercise authority of agent?

The following may not act as the patient's agent for health care decisions:

A. The patient's health care provider;

B. An employee of the patient's health care provider unless the person is a relative of the patient;

C. The patient's residential care provider; or

D. An employee of the patient's residential care provider unless the person is a relative of the patient.

Texas Statutes § 166.153

11. What form of disclosure statement should be included on a Medical Power of Attorney form?

The statement should be substantially as follows:

INFORMATION CONCERNING THE MEDICAL POWER OF ATTORNEY

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Because "health care" means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent's instructions or allow you to be transferred to another physician.

Your agent's authority begins when your doctor certifies that you lack the competence to make health care decisions.

Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had.

It is important that you discuss this document with your physician or other health care provider before you sign it to make sure that you understand the nature and range of decisions that may be made on your behalf. If you do not have a physician, you should talk with someone else who is knowledgeable about these issues and can answer your questions. You do not need a lawyer's assistance to complete this document, but if there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.

The person you appoint as agent should be someone you know and trust. The person must be 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.

You should inform the person you appoint that you want the person to be your health care agent. You should discuss this document with your agent and your physician and give each a signed copy. You should indicate on the document itself the people and institutions who have signed copies. Your agent is not liable for health care decisions made in good faith on your behalf.

Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so and treatment cannot be given to you or stopped over your objection. You have the right to revoke the authority granted to your agent by informing your agent or health or residential care provider orally or in writing or by your execution of a subsequent medical power of attorney. Unless you state otherwise, your appointment of a spouse dissolves on divorce.

This document may not be changed or modified. If you want to make changes in the document, you must make an entirely new one.

You may wish to designate an alternate agent in the event that your agent is unwilling, unable, or ineligible to act as your agent. Any alternate agent you designate has the same authority to make health care decisions for you.

THE POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES. THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:

A. The person you have designated as your agent;

B. A person related to you by blood or marriage;

C. A person entitled to any part of your estate after your death under a will or codicil executed by you or by operation of law;

C. Your attending physician;

D. An employee of your attending physician;

E. An employee of a health care facility in which you are a patient if the employee is providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or

F. A person who, at the time this power of attorney is executed, has a claim against any part of your estate after your death.

Texas Statutes § 166.163

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.