"Advance directive" is a broad term that refers to an individualís oral and written instructions about future medical care in the event one becomes unable to speak for oneself. These documents address a variety of complicated medical, legal and ethical situations that may confront a person near the very end of life. Although there is considerable variation among them, every state recognizes the patientís right to make fundamental choices as to the care and treatment he or she will or will not receive at that time.

In Texas, as in many other states that have addressed these important issues, official forms have been prescribed by statute for living wills, and other forms of advance medical directives. Deviating from these official forms is strongly discouraged because doing so may put its validity in question.

There are two types of advance directives: a living will and a medical power of attorney. Either can be revoked or modified as long as the patient is capable of doing so.

Although many people have heard of the living will, few realize that this is often a very narrow form of advance medical directive. For example, the living will might only speak about ìheroicî life prolonging measures, and might only apply when death is otherwise imminent. Such a directive would be of no use to the patient who is stable, but in a coma with no chance of recovery.

Living Will

Broadly defined, a living will states the kind of medical care a person wants (or does not want) if he or she become unable to make his or her own decisions. It is called a ìliving willî because it takes effect while one are still living. Most living wills only affect medical care if the individual has a terminal condition.

Most states have their own living will forms, each somewhat different. The Texas version is called the ìTexas Directive to Physicians.î The appropriate forms for this legal document are often available at Texas hospitals, as well as in the Texas statutes. The directive has no operative effect unless the individual has a terminal condition and death is imminent.

In order to make a directive legally binding, the individual must sign it in the presence of two witnesses. (It need not be notarized.) These witnesses cannot be:

• related to the individual by blood or marriage
• entitled to any part of the individualís estate after death,
• the individualís doctor or an employee of the doctor,
• an employee of a health care facility in which the individual is a patient,
• another patient in a health care facility where the individual is a patient; or
• a person who has a claim against the individualís estate after death.

The Health Care Power of Attorney

Although most people are aware of what a will is and why it is useful, few people know about health care powers of attorney. Many seniors will be interested in the health care power of attorney because it can prevent the depletion of their estates for expensive, futile medical treatment.

Health care powers allow the client to select who will make health care decisions in the event of incapacity. Furthermore, it allows the client to specify what types of health care he or she does or does not want. From the standpoint of the health care provider, it can sometimes resolve problems arising from family squabbles over the kind of treatment the client should receive.

A durable power of attorney for health care is a signed, dated, and witnessed instrument naming another person as the authorized agent to make oneís medical decisions in the event of incapacitation. This type of power of attorney also establishes whether the individual would like to be connected to life-sustaining equipment in the event of incapacitation. One can also include instructions about any treatment to be avoided.

Health care powers of attorney are especially helpful for clients in nontraditional family relationships, such as unmarried couples. Without the appointment as the statutory agent, a ìpartnerî may be excluded from the decision-making, particularly if the patientís biological family does not want to include the partner.

Like most states, Texas has a specific form for an advance medical directive, appointing a health care proxy, and/or for creating a comprehensive advance directive. Entitled ìTexas Durable Power of Attorney for Health Care,î the form is relatively simple and must be followed (including modifications to reflect the personís specific conditions and desires) in order for the power to be valid. The proxy can be empowered to deal with temporary incapacity as well as terminal illness.

Whom should I appoint as my agent?

The "agent" may be a family member or close friend that the individual trusts to make important decisions. The designated agent should clearly understand the individualís wishes and be willing to accept the responsibility of making medical decisions. The person appointed as an agent cannot be:

• the individualís doctor or other treating health care provider,
• an employee of the treating health care provider, unless he or she is related to the individual,
• the individualís residential care provider, or
• an employee of the residential care provider, unless he or she is related to the individual.

The scope of an agentís power is usually worded broadly, so that he or she can make any health care decision the principal would normally make. It is important for the principal to give his or her agent clear guidance in making the difficult medical decisions that could arise, especially with regard to religious or ethical limitations to be placed on treatment.

The document should instruct the proxy that in making any decision, he or she is to first try to communicate the proposed decision to you, to ascertain your desires, if possible. If this is not possible, your agent should be instructed to make a choice for you based upon what he or she believes to be in your best interests.

State law sometimes makes it difficult to compel a health care provider to follow the directions of your agent, especially if doing so would violate his or her own conscientious principles. To ease their concerns, medical personnel should be absolved from legal liability when following the instructions of a duly authorized agent. Otherwise a provider might be reluctant to withdraw treatment for fear of a lawsuit by the family later.

How do I make my Texas Durable Power of Attorney for Health Care legal?

A durable power of attorney must be signed in the presence of two witnesses, although it need not be notarized. The witnesses must affirm that the principal is of sound mind, voluntarily signed the document, and understands the durable power of attorney. These witnesses cannot be:

• the designated agent,
• the doctor or residential care provider,
• an employee of the doctor or residential health care provider, or
• a person entitled to any part of the principalís estate upon death, or any other person who has a claim against the estate.

State-specific guides with sample forms are also available to members of the American Association of Retired Persons (AARP), through its office of Legal Counsel for the Elderly. Many nursing homes or similar institutions have a patient advocate to consult about making an advance medical directive.

The required procedures for signing and witnessing an advance medical directive vary widely. While in Texas the instrument does not need to be notarized, this might not be the case in other states; in fact, the notarized signatures are highly advisable. It may help ensure that the advance medical directive is recognized in other states, if the need arises. There should also be a clause in which the witnesses recite that they know the principal personally and declare that the person appears to be of sound mind and under no duress or undue influence.

Most advance medical directives are worded to become effective upon the principalís incapacity to make health care decisions. The law in Texas states that the individualís physician is the person who determines whether or not the person are incapacitated. Other effective dates or other criteria may be specified, but if it is too complicated, the agent might have trouble establishing his or her authority with the health care providers. It is also possible to direct that the power end at a later date or upon a particular event, such as release from the hospital after surgery.

Powers to be included in the Advance Medical Directive.

The following are basic powers that must be given to an agent if he or she is to have any meaningful health care decision making authority:

• To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical and/or diagnostic procedures, medication, and the use of mechanical or other means to affect any bodily function, including (but not limited to) artificial respiration and cardiopulmonary resuscitation;
• To authorize admission to or discharge from any hospital, nursing home or other facility, even against medical advice;
• To authorize any medication or procedure intended to relieve pain, even though such treatment might lead to bodily damage, drug addiction, or hasten the moment of (but not intentionally cause) death; and
• To consent, refuse, or withdraw consent to life sustaining treatment.

Perhaps the most critical provision in an advance medical directive is the expression of the patientís wishes as to ìlife-sustaining treatment.î If the patient wants his or her doctors to employ maximum life-sustaining or prolonging efforts, an advance medical directive is the place to say so. If that is not what is desired, then the statement in the directive should be as explicit as possible, for example: ìI do not want my life to be prolonged, and I do not want life-sustaining treatment to be provided or continued if my Agent believes the burdens of the treatment outweigh the expected benefits. In making this determination, my Agent is to consider the relief of my suffering, the expense involved and the quality of my continued existence, as well as the length of time by which the proposed treatment is likely to extend my life.î

People differ widely on whether ìnutrition and hydrationî is to be considered ìtreatment,î subject to being terminated. ìNutrition and hydrationî refers to the introduction of food and fluids into the body through a nasogastric feeding tube and/or intravenous fluid lines. Under all circumstances, appropriate non-invasive care, such as spoon feeding or moistening the mouth should be expected to continue. If the patient has particular views about nutrition and hydration, these should also be included in the directive, especially if it might be applied in a state where, by law, the withholding or withdrawal of food and water is not permitted unless the patient has given specific written authorization.

Problems to anticipate

If a patient has made the decision to refuse treatment, medical providers must by law honor it. Before imposing this duty, however, the law requires that they know of the patientís instructions. As a practical matter, it is up to the patient to ensure that everyone expected to follow the advance medical directive has been given a copy of it.

Although hospitals and nursing homes are required by federal law to ask about your advance medical directive, there is no guarantee the actual document will find its way into the right hands when needed. Without some extra effort, the doctor or hospital might, in fact, not know about the advance medical directive. A good strategy is to have several original documents prepared for signing initially, so they can be taken along on trips, and freely distributed in advance.

Practical problems can arise in the event of a medical crisis at home to which emergency personnel respond. If the advance medical directive is not handy, EMS paramedics are not likely to delay CPR while the family rummages through desk drawers looking for it.

Moreover, these personnel may be required by law or their own policy to administer life support and stabilize patients for safe transport to a hospital. If this is so, there is little one can do until the patient is at the hospital. Some states are developing procedures that allow emergency medical personnel to refrain from life support efforts under some circumstances.

For those who have no advance medical directive, some states have laws that authorize family members, in a specific order of kinship, to make some or all health care decisions. Even without such statutes, doctors and hospitals routinely rely on family to make decisions, if there are close family members around and if they are in agreement. Problems are likely to arise, however, when the family does not know or cannot agree on what the patient would want in a given situation. This uncertainty can lead to family disharmony and extra unpleasantness at an already stressful time.

References

Fockler, John K. 1995. "Should You Use One or Both? Durable Power of Attorney for Health Care and Living Will," Tennessee Bar Journal, vol. 31.

Neuwirth, Gloria S. 1992. "Living Wills and Health Care Proxies," New York State Bar Journal, vol. 64 (April).

Stewart, C. Jean, Kathy L. Seidel, and Elizabeth J. Bedient. 1991. "Disability Planning: Powers of Attorney; Living Wills; Right to Refuse Medical Treatment; Medical Directives and Other Alternatives," American Law Institute-American Bar Association Course of Study (597 ALI-ABA 445): Basic Estate and Gift Taxation and Planning (February 13).