817-285-2855

Explanation of Power of Attorney for Financial Decisions

Contact Us for a Free Consultation

ADVANCE DIRECTIVES
YOUR RIGHT TO MAKE HEALTH CARE DECISIONS
UNDER THE LAW IN TEXAS

Texas and federal law give every competent adult, 18 years or older, the right to make their own health care decisions, including the right to decide what medical care or treatment to accept, reject or discontinue. If you do not want to receive certain types of treatment or you wish to name someone to make health care decisions for you, you have the right to make these desires known to your doctor, hospital or other health care providers, and in general, have these rights respected. You also have the right to be told about the nature of your illness in terms that you can understand, the general nature of these proposed treatments, the risks of failing to undergo these treatments and any alternative treatments or procedures that may be available to you.
However, there may be times when you cannot make your wishes known to your doctor or other health care providers. For example, if you were taken to a hospital in a coma, would you want the hospital's medical staff to know what your specific wishes are about the medical care that you want or do not want to receive.

The information below describes what Texas and federal law have to say about your rights to inform your health care providers about medical care and treatment you want or do not want, and about your right to select another person to make these decisions for you, if you are physically or mentally unable to make them yourself.

To make these difficult issues easier to understand, we have presented the information in the form of questions and answers. Because this is an important matter, we urge you to talk to your spouse, family, close friends, personal advisor, your doctor and your attorney before deciding whether or not you want an advance directive.

GENERAL INFORMATION ABOUT ADVANCE DIRECTIVES

What are "Advance Directives"?

Advance directives are documents which state your choices about medical treatment or name someone to make decisions about your medical treatment, if you are unable to make these decisions or choices yourself. They are called "advance" directives, because they are signed in advance to let your doctor and other health care providers know your wishes concerning medical treatment. Through advance directives, you can make legally valid decisions about your future medical care.

Texas law recognizes 4 types of advance directives:

Directive to Physicians and Family or Surrogates  (part of our standard will package)
A Medical Power of Attorney  (part of our standard will package)
A Mental Health Treatment Declaration.
An Out-of-Hospital Do Not Resuscitate Order.

Do I have to have an Advance Directive?

No, it is entirely up to you whether you want to prepare any documents. But if questions arise about the kind of medical treatment that you want or do not want, advance directives may help to solve these important issues. Your doctor or any health care provider cannot require you to have an advance directive in order to receive care; nor can they prohibit you from having an advance directive. Moreover, under Texas law, no health care provider or insurer can charge a different fee or rate depending on whether or not you have executed an advance directive.

What will happen if I do not make an Advance Directive?

You will receive medical care even if you do not have any advance directives. However, there is a greater chance that you will receive more treatment or more procedures than you may want.
If you cannot speak for yourself and you do not have an advance directive, your doctor or other health care provider will look to the following people in the order listed for decisions about your care: 1) Your guardian, if a court has appointed one, who is authorized to make health care decisions for you; 2) Your spouse; 3) An adult child, or if you have more than one adult child, a majority of those children who are reasonably available for consultation; 4) Your parents; 5) Your nearest living relative.

How do I know what treatment I want?

Your doctor must inform you about your medical condition and what the different treatments can do for you. Many treatments have serious side effects. Your doctor must give you information, in language that you can understand, about serious problems that medical treatment is likely to cause. Often, more than one treatment might help you and different people might have different ideas on which one is best. Your doctor can tell you the treatments that are available to you, but he/she cannot choose for you. That choice depends on what is important to you.

Whom should I talk to about Advance Directives?

Before writing down your instructions, you should talk to those people closest to you and who are concerned about your care and feelings. Discuss them with your family, your doctor, friends and other appropriate people, such as a member of your clergy or your lawyer. These are the people who will be involved with your health care if you are unable to make your own decisions.

When do Advance Directives go into effect?
It is important to remember that these directives only take effect when you can no longer make your own health care decisions. As long as you are able to give "informed consent," your health care providers will rely on YOU and NOT on your advance directives.

What is "Informed Consent"?

Informed consent means that you are able to understand the nature, extent and probable consequences of the proposed medical treatments and are able to make rational evaluations of the risks and benefits of those treatments as compared with the risks and benefits of alternate procedures AND you are able to communicate that understanding in any way.

How will health care providers know if I have any Advance Directives?

All hospitals, nursing homes, home health agencies, HMOs and all other health care facilities that accept federal funds must ask if you have an advance directive, and if so, they must see that it is made part of your medical records.

Will my Advance Directives be followed?

Generally, yes, if they comply with Texas law. Federal law requires your health care providers to give you their written policies concerning advance directives. A summary statement of those policies is provided for you at the back of this book. It may happen that your doctor or other health care provider cannot or will not follow your advance directives for moral, religious or professional reasons, even though they comply with Texas law. If this happens, they must immediately tell you. Then they must help you transfer to another doctor or facility that will do what you want.

Can I change my mind after I write an Advance Directive?

Yes, at any time, you can cancel or change any advance directive that you have written. To cancel your directive, simply destroy the original document and tell your family, friends, doctor and anyone else who has copies that you have cancelled them. To change your advance directives, simply write and date a new one. Again, give copies of your documents to all the appropriate parties, including your doctor.

Will my Texas Advance Directive be honored in another state?

The laws on advance directives differ from state to state, so it is unclear whether a Texas advance directive will be honored in another state. Because an advance directive is a clear expression of your wishes about medical care, it will influence that care no matter where you are admitted. However, if you plan to spend a great deal of time in another state, you might want to consider signing an advance directive that meets all the legal requirements of that state.

Will an Advance Directive from another state be honored in Texas?

Yes. An advance directive executed in compliance with another state's laws will be honored in Texas to the extent permitted by Texas law.

What Should I do with my Advance Directives?

You should keep them in a safe place where your family members can get to them. Do NOT keep the original copies in your safe deposit box. Give copies of these documents to as many of the following people as you are comfortable with: your spouse and other family members; your doctor; your lawyer; your clergyperson; and any local hospital or nursing home where you may be residing. Another idea is to keep a small wallet card in your purse or wallet which states that you have an advance directive and who should be contacted.


DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES (LIVING WILL) What is a "Living Will"?

A living will (officially called a "Directive to Physicians and Family or Surrogates" in Texas) is a document that tells your doctor or other health care providers whether or not you want life-sustaining treatments or procedures administered to you if you are in a terminal condition or in an irreversible condition. It is called a "living will" because it takes effect while you are still living.
Is a "Living Will" the same as a "Will" or "Living Trust"?

No. Wills and living trusts are financial documents which allow you to plan for the distribution of your financial assets and property after your death. A living will only deals with medical issues while you are still living. Wills and living trusts are complex legal documents and you usually need legal advice to execute them. You do not need a lawyer to complete your Texas living will.

When does a Texas Living Will go into effect?

A living will goes into effect when: 1) your doctor has a copy of it, and 2) your doctor has concluded that you are no longer able to make your own health care decisions, and 3) your doctor has determined that you are terminally ill or in an irreversible condition.

What are "life-sustaining" treatments?

These are treatments or procedures that are not expected to cure your terminal condition or make you better. They only prolong dying. Examples are mechanical respirators which help you breathe, kidney dialysis which clears your body of wastes, and cardiopulmonary resuscitation (CPR) which restores your heartbeat.

What is a "terminal" condition?

A terminal condition is defined as an incurable condition for which administration of medical treatment will only prolong the dying process and without administration of these treatments or procedures, death will occur within 6 months.

What is an "irreversible" condition?

An irreversible condition means a condition, illness or injury that 1) may be treated but is never cured; 2) leaves a person unable to care for himself or make decisions for himself; and 3) without life-sustaining treatment is fatal. Is a Living Will the same as a "Do Not Resuscitate (DNR)" order? No. A Texas living will covers almost all types of life-sustaining treatments and procedures. A "Do Not Resuscitate" order covers only two types of life-threatening situations. A DNR order is a document prepared by your doctor at your direction and placed in your medical records. It states that if you suffer cardiac arrest (your heart stops beating) or respiratory arrest (you stop breathing), your health care providers are not to try to revive you by any means.

Will I receive medication for pain?

Unless you state otherwise in the living will, medication for pain will be provided where appropriate to make you comfortable and will not be discontinued.

Does a Texas Living Will apply if a woman is pregnant?

Texas law is very specific on this subject. The provisions of the living will cannot go into effect if a woman is pregnant.
Can my doctor be sued or prosecuted for carrying out the provisions of a Texas Living Will?

No. Texas law states that no physician or any person acting under the direction of a physician or a health care facility can be held civilly or criminally liable for carrying out the provisions of a valid Texas living will.

Does a Texas Living Will affect insurance?

No. The making of a living will, in accordance with Texas law, will not affect the sale or issuance of any life insurance policy, nor shall it invalidate or change the terms of any insurance policy. In addition, the removal of life-support systems according to Texas law, shall not, for any purpose, constitute suicide, homicide or euthanasia, nor shall it be deemed the cause of death for the purposes of insurance coverage.


Does a Texas Living Will have to be signed and witnessed?

Yes, you must sign (or have someone sign the document in your presence and at your direction, if you are unable to sign) and date the living will. Then it must be witnessed by 2 competent adult people.

At least 1 of the 2 witnesses CANNOT be:

1) Anyone you have designated to make a treatment decision for you;
2) Anyone related to you by blood or marriage;
3) Anyone entitled to any part of your estate upon your death; 4) Your attending physician or an employee of your attending physician;
5) An employee of a health care facility in which you are a patient if that employee is providing you with direct patient care;
6) An officer, director, partner, or business office employee of a health care facility in which you are a patient; or
7) Any person who has a claim against any part of your estate.

Sample

Aenean lacinia bibendum nulla sed consectetur. Donec sed odio dui. Maecenas sed diam eget risus varius blandit sit amet non magna. Nulla vitae elit libero, a pharetra augue. Curabitur blandit tempus porttitor. Morbi leo risus, porta ac consectetur ac, vestibulum at eros. Cras justo odio, dapibus ac facilisis in, egestas.

Sample

Aenean lacinia bibendum nulla sed consectetur. Donec sed odio dui. Maecenas sed diam eget risus varius blandit sit amet non magna. Nulla vitae elit libero, a pharetra augue. Curabitur blandit tempus porttitor. Morbi leo risus, porta ac consectetur ac, vestibulum at eros. Cras justo odio, dapibus ac facilisis in, egestas.