Owner — Mark W. Sutherland, P.C.
Fall 2019 ISSUE:
PROBATE & ESTATE PLANNING
We can never know what the future holds, but there are steps we can all take to prepare for unexpected life events. In the article below, Mark W. Sutherland explains the importance of certain documents you can prepare before a serious illness or injury occurs that allow your loved ones to take necessary steps to ensure your wishes are carried out. Mark W. Sutherland has more than forty years of experience and is Board Certified in residential real estate law, commercial real estate law, and estate planning and probate law. He is a member of the Dallas County Bar Association, a Board Member on the Collin County Bar Estate Planning & Probate Section, Chair of the Carrollton-Farmers Branch ISD Educational Foundation, a member of the Denton County Bar REPTL Section, and a Board Member for the Rotary Club of Carrollton-Farmers Branch.
While it goes almost without saying, everyone needs to have a last will and testament that is current and well prepared. However, unexpected events can occur during our lifetimes and right at the time of our deaths, such as serious illnesses and injuries that demand both sound planning and well-prepared documents. Chapter 166 of the Texas Health and Safety Code authorizes four different “advance directive documents”: (1) the Medical Power of Attorney; (2) the Directive to Physicians, Family Members and Surrogates; (3) the Out-of-Hospital Do Not Resuscitate Order;1 and (4) the In-Hospital Do Not Resuscitate Order.2 This article examines the first two documents and also includes some brief comments regarding the authorization for the release of confidential medical information under federal law (HIPAA). Excluded from the scope of this article is the statutory durable power of attorney form authorized by Chapter 751 of the Texas Estates Code, which appoints agents to deal with assets and finances during one’s lifetime, and the Appointment for Disposition of Remains, which appoints an agent to deal with the disposition of a deceased person’s body.3
II. The Two Health and Safety Code Advance Directives
A. General Comments
The Medical Power of Attorney (“MPOA”) and its companion directive, the Directive To Physicians, Family Members and Surrogates (referred to in this article as “Directive” and commonly referred to in the community as the “Living Will”), are designed to assist with making “health care treatment decisions”4 under various circumstances. These decisions include the “consent, refusal to consent, or withdrawal of consent to health care, treatment, service, or a procedure to maintain, diagnose, or treat an individual’s physical or mental condition.”5
As noted below, these two forms are set out in the Texas Health and Safety Code and, at least with the MPOA, must be prepared substantially in that format. This does not mean that either the MPOA or the Directive is a fill-in-the-blank form that can be executed without forethought. There are important issues to be considered with both.
The general provisions of Subchapter A of Chapter 166 of the Texas Health and Safety code apply to all four of the above named advance directives (the Medical Power of Attorney, the Directive to Physicians, Family Members and Surrogates; the Out-of-Hospital Do Not Resuscitate Order;6 and the In-Hospital Do Not Resuscitate Order and contain important definitions and provisions. At the outset, it is critical to understand some of these definitions before executing any of these advance directives. Some important definitions below are taken directly from the statute.
1. “Terminal Condition” means 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 the prevailing standard of medical care. A patient who has been admitted to a program under which the person receives hospice services provided by a home and community support services agency licensed under Chapter 142 is presumed to have a terminal condition for purposes of this chapter.7
2. “Irreversible Condition” means 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 the person's own self; and
(C) that, without life‑sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.8
3. “Life-Sustaining Treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life‑sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.9
4. “Artificially Administered Nutrition and Hydration” means the provision of nutrients or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the gastrointestinal tract.10
5. “Competent” means possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.11
6. “Incompetent” means lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.12
It is essential to note that a “terminal condition” and an “irreversible condition” are two totally different conditions. A terminal condition arises as the result of injury, disease, or illness that will result in the declarant’s (the person who has executed or issued a directive)13 death within six months, even with available life-sustaining treatment. This could include events like a serious injury sustained in a car accident, a cancer diagnosis, or a heart attack. Conversely, an irreversible condition means a condition, injury, or illness that may be treatable but never cured or eliminated and that without life-sustaining treatment, is fatal. Thus, an irreversible condition really contemplates a condition in which the declarant could be kept alive for an extended time with medical assistance, but without that medical assistance, the declarant would die. The importance of this distinction will become apparent when applied to the various advance directives (more on this below).
B. The Medical Power of Attorney
Subchapter D of Chapter 166 of the Texas Health and Safety Code authorizes a document called a medical power of attorney (“MPOA”). An MPOA can be executed by an adult, or by a minor who has received a court order that they have the same legal abilities as an adult, to appoint an “agent”14 (“an adult to whom authority to make health care decisions is delegated under a medical power of attorney”).15 Under prescribed circumstances, this agent is authorized to make any health care decisions on behalf of the principal (the “adult who has executed a medical power of attorney”)16 “that the principal could make if the principal were competent.”17
With that said, however, the decision-making power is subject to a number of limitations and restrictions:
1. The agent may exercise decision-making power only if the principal’s attending physician certifies in writing that the principal is incompetent.18
2. The attending physician must make a reasonable effort to inform the principal of any proposed treatment or of any proposed withdrawal or withholding of treatment before implementing that decision.19
3. Treatment may not be given or withheld if the principal objects, regardless whether the principal is competent.20 Thus, an incompetent principal can overrule the agent’s decisions.
4. Once the principal’s incompetence is certified, the agent shall make the health care decision after consulting with the attending physician:
a. in accordance with the agent’s knowledge of the principal’s wishes, including the principal's religious and moral beliefs;21 or
b. if the agent does not know the principal’s wishes, then according to the agent’s assessment of the principal’s best interests.22
5. Notwithstanding any other provision of the statute, the agent may not consent to voluntary inpatient medical health services, convulsive treatment, psychosurgery, abortion, or neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal.23
6. With one very limited exception, the principal’s health care or residential care provider and its employees cannot serve as the agent.24 The exception to this rule is when that employee is also a relative of the principal.25
The form for the MPOA is codified in Texas Health and Safety Code Section 166.164 that requires the MPOA to “be in substantially” the form provided.26 Accordingly, alterations or deviations from the statutory form should not be attempted. However, the statutory form does provide the principal with an opportunity to impose binding limitations on the power of the agent. For example, certain religious organizations have restrictions on allowed medical treatments and procedures, such as blood transfusions or other treatments. The Catholic Church has promulgated modified versions of the MPOA and the Directive to address some of the church’s teachings.27 Other restrictions specific to the principal can also be inserted in the respective section of the form.
Once the statutory MPOA is prepared, it must be executed in compliance with the provisions of the statute. The principal may execute the MPOA in the presence of two competent adult witnesses and without a notary public.28 However, the statute requires that at least one of the two witnesses not be any of the following persons: a person designated as an agent; a person related to the principal by blood or marriage; a devisee (a person entitled to any part of the principal’s estate) under the principal’s will or an heir by intestate succession (the default inheritance laws for someone who doesn’t have a will); the attending physician; an employee of the attending physician; an employee of the health care facility; or a person who has a claim against any part of the principal’s estate after the principal’s death.29 While the best practice is to utilize only witnesses who do not fall into any of these categories, circumstances sometimes make that a difficult practice to implement, especially when the principal is already in a health care facility. Alternatively, in lieu of the two witnesses, the MPOA may be executed before a notary public.30 Consequently, when a notary public’s services are utilized instead of two witnesses, issues relating to whether a witness is qualified are eliminated.
In the event that the principal is physically unable to sign the MPOA, another person may sign it on the principal’s behalf.31 That person signs the principal’s name in the principal’s presence and at the principal’s express direction.32 If a legal guardian has been appointed over a principal, the probate court can determine whether to suspend or revoke the authority of the agent.33
Upon proper execution, the MPOA is effective indefinitely unless revoked by the agent or if the principal becomes competent.34 A principal can always revoke an MPOA. Revocation can be oral or in writing (without regard to the principal’s mental state), by the execution of a subsequent MPOA by the principal, or by divorce if the agent is the divorced spouse.35
C. The Directive to Physicians, Family Members and Surrogate Decision Makers
Subchapter B of Chapter 166 of the Texas Health and Safety Code authorizes a document called a Directive to Physicians and Family or Surrogate (the “Directive” and commonly referred to in the community as the “Living Will”). The Directive is an instruction to administer, withhold, or withdraw life-sustaining treatment in the event of a terminal or irreversible condition, as defined above.36 The Directive can be executed by a competent adult at any time.37 In the case of a qualified patient under the age of 18, the Directive can be executed by the patient’s spouse (if the spouse is an adult), parents, or legal guardian.38
While this statute contains a form of the Directive,39 unlike the MPOA, the statute does not mandate the use of the statutory form.40 The execution requirements for the Directive are very similar to those for the MPOA.41 And, similar to the MPOA, the Directive does not become effective until the patient has become a “qualified patient,” which means “a patient with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician.”42
Finally, like the MPOA, there are statutory provisions that allow for the issuance of an oral or non-written Directive.43 If a patient has not executed an MPOA, that appointment can be made in the body of the Directive.44 Like the MPOA, the Directive can be revoked by the patient at any time, without regard to the patient’s mental state or competency,45 and the revocation can be written or oral.46
So what exactly does the Directive do? Basically, it is the patient’s directive (or instructions) to the patient’s physicians, family, or surrogates as to whether “life-sustaining treatment” should be administered, continued, or withdrawn in the event that the patient has a terminal or irreversible condition. The text of the Directive form states this direction as follows:
I, ____, recognize that the best health care is based upon a partnership of trust and communication with my physician. My physician and I will make health care or treatment decisions together as long as I am of sound mind and able to make my wishes known. If there comes a time that I am unable to make medical decisions about myself because of illness or injury, I direct that the following treatment preferences be honored . . .47
Following this paragraph, the patient “requests” either that “all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible”; or that “I be kept alive in this terminal condition using available life‑sustaining treatment.”48 The patient makes a separate election as to a terminal condition and an irreversible condition.49 In essence, the patient is telling the physicians (and family members) the manner in which the patient desires to be treated under these circumstances.
In all cases, however, the currently expressed desires of a qualified patient (whether an adult or a minor) supersede the effect of the Directive.50 In short, the patient’s desires and expressed wishes control over the Directive until such time as the qualified patient becomes incompetent or incapable of communication.
When a qualified patient, who has executed a directive, becomes incompetent or incapable of communication, the appointed decision maker (appointed in either a separate MPOA or in the body of the Directive) and the physician make a treatment decision in accordance with the qualified patient’s directions.51 If there is no designated decision maker, the physician must comply with the provisions of the Directive unless the physician believes that the Directive does not reflect the patient’s present desires.52 Accordingly, even after incapacity arises, the qualified patient’s most recently expressed desires and wishes control.
Alternatively, if a qualified patient who has never executed a Directive or an MPOA and does not have a legal guardian or agent under an MPOA becomes incompetent or incapable of communication, the Texas Health and Safety Code provides a methodology for dealing with the situation. Essentially, the statute lists categories of family members in order of priority who, along with the attending physician, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment.53
From a legal standpoint, the Directive provides a safe harbor from criminal prosecution and civil liability for aiding a declarant who wishes to withdraw or withhold life-sustaining treatment in accordance with the declarant’s Directive.54 At the same time, the statute “does not condone, authorize, or approve of mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying.”55 While the statute can impose disciplinary penalties upon a physician who refuses to comply with a Directive or treatment decision,56 it also provides a mechanism for a physician to facilitate a transfer of the patient to another facility that is willing to comply with the Directive or treatment decision.57
III. The HIPAA Authorization for the Release of Medical Information
In 1996, Congress passed a law entitled the Health Information Portability and Accountability Act of 1996, which is commonly referred to as HIPAA.58 HIPAA is a broad and comprehensive law designed to protect a patient’s protected health information. Among other matters, it restricts the distribution of a patient’s medical information without the patient’s consent. As a result, a prudent person should consider executing a valid authorization for the disclosure of his or her protected health information to such family members and others he or she selects. Otherwise, it is possible that a health care provider may be prohibited from making such a disclosure at a point in time when the patient is no longer able to give the required authorization.
The regulations governing the use and disclosure of protected health information are controlled in part by Title 45 of the Code of Federal Regulations, Section 164.508. This regulation requires a valid authorization for the disclosure of such protected health information.59 Among other requirements, a valid authorization must contain (1) a description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion; (2) the name or other identification of the person(s) authorized to make the disclosure; (3) the name or other identification of the person(s) authorized to receive the disclosure; and (4) the signature of the individual and the date of execution.60 Except in a few specific circumstances described in the statute, the regulations prohibit the use of “compound authorizations,” which are defined as an authorization that is combined with any other document.61 Accordingly, the HIPAA authorization for the disclosure of protected health information should not be combined with any other document such as an MPOA or a Directive.
IV. Concluding Comments
As a person contemplates the execution of an MPOA and a Directive (along with a HIPAA authorization), a number of questions and concerns should be considered.
1. Will executing these advance directives in any way rob me of my power to control my treatment?
The answer is “no.” As stated above, these documents have virtually no effectiveness unless and until the patient meets several tests, such as the terminal or irreversible condition and the loss of competency or ability to communicate. The ability to communicate includes almost any kind of non-verbal communication of the patient’s wishes. Thus, as a functional matter, the patient stays in control until he or she can no longer meaningfully communicate his or her wishes.
2. Who should I select as my agent under the MPOA?
The selection of an agent should be carefully considered. In this writer’s mind, three different questions need to be asked and answered as a person makes this decision:
A. Will my agent know what my wishes are? The whole purpose of the Directive is to provide a clear statement to the agent as to the principal’s wishes.
B. Will my agent comply with my wishes? This is obviously a very subjective question. The principal certainly should have a meaningful conversation with any proposed agent about whether that person understands the principal’s wishes and whether he or she is willing to accept the appointment.
C. Will my agent be able to live with a clear conscience after complying with my expressed wishes, especially if complying with my wishes results in my death? This may be an emotional burden that is greater than what some people are willing or able to bear. So, again, a meaningful conversation with the proposed agent should be conducted before appointing the agent.
3. Do I really need all of this? Can’t the system somehow deal with all this for me when the time comes?
The best answer to this question is illustrated by the Terri Schiavo case that filled the news in the mid-2000s.62 In that case, Ms. Schiavo suffered a serious heart attack in 1990 and, shortly thereafter, was diagnosed as being in a persistent vegetative state with little or no brain activity. Applying Texas standards to this situation, she would have been considered as having an irreversible condition. Ms. Schiavo was kept alive by the artificial administration of nutrition and hydration, one of the elements for life-sustaining treatment under Texas law. However, she had no advance directives of any kind.
In 1998, Ms. Schiavo’s husband brought an action in a Florida court to remove her feeding tube. Ms. Schiavo’s parents, however, opposed this request. For seven years after that, a massive legal battle was fought. The question sought to be answered was whether Ms. Schiavo had ever expressed her wishes regarding how she would want to be treated in such a situation and who she would want to be her decision maker. After years of litigation in Florida state courts, the U.S. Congress passed a law moving the case to federal court. Five suits were filed in federal court. The United States Supreme Court refused to hear the case on four separate occasions. Ultimately, the court authorized the removal of the feeding tube, and Ms. Schiavo died in March 2005, more than fifteen years after her heart attack. While the costs in legal fees were almost certainly exorbitant, the emotional and psychological costs to the Schiavo family must have been immeasurable. All of this could have been avoided by the execution of effective advance directive documents.
This article covers only two of the many advance directive instruments available for Texas residents. While every person does not need both of them, each individual should give serious consideration to his or her own situation, and, with the assistance of a professional, determine which of these might be useful in his or her own life.
1 Tex. Health & Safety Code § 166.002(1)(A)–(C).
2See id. § 166.201.
3See id. § 711.001.
4See id. § 166.002(7).
6 Tex. Health & Safety Code § 166.002(1)(A)–(C).
7 See id. § 166.002(13).
8 Tex. Health & Safety Code § 166.002(9).
9See id. § 166.002(10).
10See id. § 166.002(2).
11 See id. § 166.002(4) (emphasis added).
12 See id. § 166.002(8) (emphasis added).
13 Tex. Health & Safety Code § 166.002(5).
14 See id. § 166.151(1).
15 See id. § 166.151(2).
16 See id. § 166.151(4).
17 See id. § 166.152(a).
18 See id. § 166.152(b).
19 Tex. Health & Safety Code § 166.152(d).
20See id. § 166.152(c)(2).
21See id. § 166.0152(e)(1).
22See id. § 166.152(e)(2).
23See id. § 166.152(f)(1)–(5).
24See id. § 166.153(1)–(4).
25 Tex. Health & Safety Code § 166.153(2).
26See id. § 166.164.
27See, e.g., Advance Directives Reform, Texas Catholic Conference of Bishops, http://txcatholic.org/medical-advance-directives. (last visited Nov. 3, 2019).
28 Tex. Health & Safety Code §§ 166.154(a), 166.003(1).
29 See id. § 166.003(1) & (2)(A)–(G).
30 See id. § 166.154(b).
31 See id. § 166.154(c).
33 Tex. Health & Safety Code § 166.156(a).
34 See id. § 166.152(g).
35 See id. § 166.155(a).
36 See id. § 166.031(1).
37 See id. § 166.032(a).
38 See id. § 166.035.
39 Tex. Health & Safety Code § 166.033.
40 Id.; See id. § 166.032(c).
41 See id. § 166.032.
42 See id. § 166.031(2).
43 See id. § 166.034.
44 See id. § 166.032(c).
45 Tex. Health & Safety Code § 166.042(a).
46 See id. § 166.042(a)(1)–(3).
47 See id. § 166.033.
50 See id. § 166.037.
51 Tex. Health & Safety Code § 166.038(b).
52 See id. § 166.038(c).
53 See id. § 166.039(b).
54 See id. §§ 166.047 (criminal liability),166.044 (civil liability).
55 See id. § 166.050.
56 See id. § 166.045(b)
57 Tex. Health & Safety Code § 166.045(c).
58 Health Information Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936 (1996).
59 45 C.F.R. § 164.508(a)(1) (2013).
60 See id. § 164.508(c)(1).
61 See id. § 164.508(b)(3).
62 National Public Radio, Schiavo's Death Ends Bitter Right-to-Life Battle https://www.npr.org/templates/story/story.php?storyId=4569804 (last visited November 29, 2019).