Cases like Terri Schiavo horrify. Everyone fears surviving a medical crisis, only to be left in a persistent vegetative state with a respirator and feeding tube. Medical directives minimize the drama, by designating an agent to speak when you cannot, and by setting limits on the treatment provided when your condition is terminal or irreversible.
The Texas scheme
The Texas Health and Safety Code, chapter 166, authorizes four advance directives: a directive to physicians, a medical power of attorney, an out-of-hospital do-not-resuscitate (DNR) order, and an in-hospital DNR order. The directive to physicians and medical power of attorney, along with a HIPAA authorization, are part of most lawyers’ estate planning packages. DNR orders require a physician’s signature, and, outside of nursing homes, are uncommon before the last year or so of life. Texas respects directives issued in other states, if valid there.
The four directives
The directive to physicians is also called a “living will.” It doesn’t apply until the patient suffers a terminal or irreversible condition. The basic form offers two options: life support or just comfort care. Texas enables a third option: let the doctor and medical agent decide together.
The medical power of attorney names an agent to make any healthcare decision the patient could, from clipping toenails to pulling the plug. The agent is to carry out the patient’s wishes, written or not, even if the agent disagrees with the patient’s preferences. Medical powers are ineffective until the attending physician certifies in writing that the patient is incompetent to make medical care decisions. In practice, doctors, records departments, and prescription drug companies seldom ask for the certification.
The out-of-hospital DNR stops life-sustaining treatments outside the hospital, including CPR, intubation, ventilation, defibrillation, and cardiac pacing. It must be in writing, and on a promulgated form. A designated necklace or bracelet alerts paramedics and others to the order.
The in-hospital DNR stops CPR in the hospital. You can request one on discharge, for use during the next hospital admission. Don’t think of it as one for the road. That would be the out-of-hospital DNR.
These four directives are considered “advance” because they are signed pre-need. Any patient that can communicate is always allowed to request or refuse treatment and revoke prior directives.
HIPAA authorizations
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) penalizes the unauthorized release of patient medical information. So-called HIPAA authorizations allow medical providers, vendors, and records custodians to share information with friends and family, including business agents and executors that want to audit bills, and medical agents without a certification that the patient is incompetent. A HIPAA authorization is effective immediately, so that friends and family can stay informed and assist with your care, even if you never you lose the ability to communicate or make your own decisions.
Further reading
For help choosing an agent and discussing your wishes, start here: https://bellaireprobate.com/2018/08/the-end/. An enhanced DNR, as yet unblessed by the Texas legislature, is found at https://www.texastalks.org/s/MOST-Final-9201829676-2.pdf. Lawyers: for a good discussion of Texas Health & Safety Code, Chapter 166, see Melissa J. Willms, Death and Probate: Selected End-of-Life Issues, in 25 Texas Bar College Summer School (2017) and Gus G. Tamborello, Alternatives to Guardianship (Including Supports and Services), in 9 Advanced Guardianship Law (2019). You’ll have to pull Chapter 166, Subchapter E, effective April 1, 2018, for the new language enabling an in-hospital DNR.
