Medical Powers of Attorney

The Medical Power of Attorney and Directive to Physicians and Family or Surrogates are used to plan for situations when a patient can no longer speak for him/her self.

A Medical Power of Attorney (formerly a Health Care Power of Attorney) lets you appoint someone you trust to make decisions about your medical care if you cannot make those decisions yourself. The statutory form for a Medical Power of Attorney is set out in §166.164 of the Health and Safety Code and is a mandatory, not permissive form, as is the accompanying disclosure statement. The purpose of the disclosure statement is to provide information and understanding concerning the nature of the Medical Power of Attorney. Section 166.162 of the Health and Safety code states that a Medical Power of Attorney is not effective unless the principal, before executing the Medical Power of Attorney, signs a statement that the principal has received a disclosure statement and has read and understood its contents.

A person serving as agent under a Medical Power of Attorney should know the patient’s values intimately. If an aggressive and possibly painful course of treatment will give the patient a one in three chance of recovering to the point of being able to resume communication with loved ones for at least a few more months, is that hope enough to treat the patient aggressively? What if the odds were one in 20? Medical Powers of Attorney are particularly important when there is no spouse to make decisions and the possibility exists that adult children will disagree as to how a parent should be treated. Without the authority given by a Medical Power of Attorney, a physician or health care provider may be reluctant to undertake an aggressive course of treatment.

The new statute provides that an agent under a Medical Power of Attorney has life sustaining treatment authority where no Directive to Physicians, Family, or Surrogates has been executed. The agent under the Medical Power of Attorney will have authority to make decisions regarding the withholding of life support. However, some agents will be unable to withhold artificial life support on a parent or spouse. Under those circumstances, a Directive to Physicians could mean the patient’s wishes regarding artificial life support will be honored. If the agent becomes unavailable or unwilling to serve, the Directive to Physicians can provide a guide to medical decision making. The existence of a Directive to Physicians can also reassure the agent that he/she is following the wishes of the principal and ease the burden of decision making.

The Directive to Physicians and Family or Surrogates is set forth at §166.033. This section, passed in 1999, sets out a completely revised form that replaces the old Directive to Physicians. The new form remains permissive, not mandatory. The new form is longer and divides medical conditions into two broad categories of “Irreversible Conditions” and “Terminal Conditions.” The patient is given the choice to have life sustaining procedures either applied or withheld for both Irreversible or Terminal Conditions.

Section 166.002 (9) defines an “Irreversible Condition” as a condition, injury, or illness (a) that may be treated but is never cured or eliminated; (b) that leaves a person unable to care for or make decisions for himself; and (c) that without life sustaining treatment provided in accordance with prevailing standard medical care, is fatal. An example of an “Irreversible Condition” is advanced Alzheimer’s disease.

A Terminal Condition is defined in §166.002 (13) as 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 prevailing standard medical care.

The key distinction between “Irreversible” and “Terminal” conditions is the six-month time period. Both seem to refer to conditions that will ultimately cause death, with the difference being that “Irreversible” refers to conditions with a six-month or longer life expectancy while “Terminal” refers to conditions with less than a six-month life expectancy.

“Life-Sustaining Treatment” is treatment that sustains the life of a patient without which the patient will die and specifically includes artificial life support, kidney dialysis treatment, and artificial nutrition and hydration but specifically does not include medical procedures considered to be necessary to provide comfort care or pain medication.

If one does not have a Directive to Physicians or a Medical Power of Attorney, and no guardian of the person has been appointed, the statute gives the right to make the decision whether to terminate life sustaining treatment to the following family members, in the following order (and in conjunction with the attending physician): the spouse, the “reasonably available adult children,” the parents, then the nearest living relative.

Category : Guardianship Law &Probate Law

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