Working Caregiver- Texas Rights to Make Treatment Decisions for Seniors

In Texas there are three ways an individual has to make treatment decisions

General Information on Rights to Make Treatment Decisions

By Samantha Young

In Texas there are only three ways in which an individual's right to make treatment decisions may be transferred to another person:

  1. The competent individual may make the decision in the form of properly executed directives (verbal or written, such as Directive to Physicians/Living Will or Medical Power of Attorney),
  2. The Individual may be declared incompetent by a court of law and have a guardian appointed who can make his/her treatment decisions, or
  3. The individual is determined by his/her physician to be medically or physically incapable of communication and in a terminal condition.

I. DIRECTIVE TO PHYSICIANS (LIVING WILL)

You can obtain a Directive to Physicians/Living Will from the Texas Medical Association (texmed.org 512-370-1341) or on-line from the University of Houston at law.uh.edu/peoplelawyer/willform.html. The statute does require you to follow precisely the form, but permits you to add specific instructions of you own - including designation of another person to make treatment decisions on you behalf when you become comatose, incompetent, or otherwise physically or mentally incapable of communication.

You may also want to add a place for you to include any other personal instructions you may have. You might want to list particular treatment to be withheld or withdrawn if you are in a terminal condition - for example. "I do not want antibiotics, surgery, cardiac, resuscitation, a respirator, artificial feeding". You might even want to emphasize your desire to be kept comfortable and pain-free though medication may shorten your life.

Your Directive to Physicians/Living Will must be signed in the presence of two witnesses, who must also sign the Directive to Physicians/Living Will. One of the witnesses may NOT be;

  1. related to you by blood or marriage;
  2. have a claim on your estate;
  3. have been designated by you to make a health care treatment decision on your behalf;
  4. your attending physician;
  5. employed by your attending physician;
  6. an employee of a health care facility in which you reside, if the employee is involved in 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.

You should discuss your Directive to Physicians/Living Will with your doctor, who should make a copy of it as part of your medical record. If you change doctors, make sure your new doctor has a copy. Discuss it also with family members or others close to you, and provide a copy to the person who might someday have to make medical decisions for you. Keep your own Directive to Physicians/Living Will at home, among your important papers and readily available.

Properly signed and witnessed, your Directive to Physicians/Living Will remains in effect until or unless you revoke it. As long as you are competent, your own expressed wishes (verbal or written) always supersede your Directive to Physicians/Living Will.

II. MEDICAL POWER OF ATTORNEY

Texas also has a Medical Power of Attorney law that permits you to appoint an agent specifically authorized to make medical treatment decisions on your behalf. These can include the decision to refuse or withdraw consent to medical treatment. Your agent can make medical decisions for you when you lack the capacity to make them yourself, regardless of whether or not you are in a terminal condition. Your agent may NOT be one of the following persons:

  1. related to you by blood or marriage;
  2. have a claim on your estate;
  3. have been designated by you to make a health care treatment decision on your behalf;
  4. your attending physician;
  5. employed by your attending physician;
  6. an employee of a health care facility in which you reside, if the employee is involved in 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.

The Medical Power of Attorney can be an extremely useful complement to your Directive to Physicians/Living Will. It can broaden and strengthen your control over treatment choices whenever you are unable to exercise your right of informed consent. A disclosure statement must be signed as part of a Medical Power of Attorney.

A sample Medical Power of Attorney can be found on-line from the University of Houston at law.uh.edu/peopleslawyer/willform.html . Remember that both parts of it, the Disclosure Statement and Power of Attorney portions, must be properly executed and witnessed. One of the witnesses may NOT be:

  1. related to you by blood or marriage;
  2. have a claim on your estate;
  3. have been designated by you to make a health care treatment decision on your behalf;
  4. your attending physician;
  5. employed by your attending physician;
  6. an employee of a health care facility in which you reside, if the employee is involved in 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.

III. GENERAL INSTUCTIONS FOR ADVANCE DIRECTIVES

  • Keep signed originals with your important personal papers or in a safety deposit box.
  • Give signed copies to doctor, family, agent, or other health care providers.
  • If possible, review your Directive to Physicians/Living Will or Medical Power of Attorney from time to time to make sure it continues to properly express your intent.
  • If your choose to execute both a Directive to Physicians/Living Will and a Medical Power of Attorney, it is best to execute them both the same date, and to designate the same person to act on your behalf. Otherwise, inconsistencies may cause interpretive difficulties, and the document executed on the latest date will control.

IV. WHEN A PERSON IS IMCOMPETENT AND HAS NO DIRECTIVE AND HAS NO LEGAL GUARDIAN

(a) If an adult qualified patient has not executed or issued a directive and is comatose, incompetent, or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian may make a treatment decision that may include a decision to withhold or withdraw life-sustaining procedures form the patient. A qualified patient is one who has been determined to be in a terminal condition, in a accordance with the Texas Natural Death Act.

(b) If the patient does not have a legal guardian,  the attending physician and at least two persons, if available, of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining produces:

  1. the patient's spouse;
  2. a majority of the patient's reasonably available adult children;
  3. the patient's parents; or
  4. the patient's nearest living relative.

(c) A treatment decision made under paragraph (a) or (b) must be based on knowledge of what the patient would desire, if known.

(d) A treatment decision made under paragraph (b) must be in the presence of at least two witnesses who are NOT:

  1. related to you by blood or marriage;
  2. have a claim on your estate;
  3. have been designated by you to make a health care treatment decision on your behalf;
  4. your attending physician;
  5. employed by your attending physician;
  6. an employee of a health care facility in which you reside, if the employee is involved in 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.