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What is an advance
directive?
In the state of Texas, an advance directive is composed of four documents.
First, a Directive to the Physician states what life
sustaining health care treatment you would desire if you had a terminal
condition and were unable to physically or mentally make a medical decision.
Second, the Medical Power of Attorney names one or more
persons who will be legally able to make your health care decisions in
the event that you are physically or mentally unable to communicate. The
third document is an Out-of-Hospital “Do Not Resuscitate”
(DNR) Order. A DNR is appropriate for any person who does not
wish to undergo life sustaining treatment deemed medically inappropriate
in the event of cardiac or respiratory arrest which permits (i) you to
refuse emergency treatment in the event that you have a terminal condition
AND ambulance or emergency medical services are called or (ii) you are
rushed into an emergency room AND you are mentally and physically unable
to make or communicate your own choices regarding resuscitation. Fourth,
Texas also permits you to complete a Directive for Mental Health
Treatment which allows you to determine in advance the mental
health treatments you would not want in the event that you were mentally
and physically unable to make or communicate your own choices.
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Do I need a lawyer to
complete these documents?
No, while you may wish to consult with an attorney if you have additional
questions about your advance directives, one is not required to complete
these documents. You should discuss these documents with your physician,
family, and give copies of the completed documents to the person you choose
to be hold your medical power of attorney. You should also have the documents
witnessed or notarized.
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I want all
life-sustaining measures to be taken. Should I still need to complete
an advance directive?
Yes. The advance directive simply states what your wishes are regarding
your health care treatment. You can state that you want all life-sustaining
treatment, no life-sustaining treatment, or anything in between.
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Do I have to
complete all 4 documents?
No. You can complete 1, 2, 3, or 4 of the documents. In general, it is
recommended that most people complete the directive to physician and medical
power of attorney. If you have been diagnosed with a terminal condition,
then you may wish to complete the out-of-hospital DNR.
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I have
an advance directive completed in another state. Will those documents
be honored in Texas?
An advance directive or similar instrument validly executed in another
state or jurisdiction shall be given the same effect as an advance directive
validly executed under the law of Texas. However, the out of state directive
may be limited in that requests to administer, withhold, or withdraw health
care that are not legal under Texas law cannot be honored. If you are
a resident of Texas, it is recommended that you execute documents consistent
with Texas law.
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What if
I fill out an Advance Directive in Texas and am hospitalized in a different
state?
The laws on honoring a Texas advance directive in another state depend
on that state’s laws. Because an advance directive tells your wishes
regarding medical care, it may be honored wherever you are, if it is made
known. But if you spend a great deal of time in more than one state, you
may wish to consider having your advance directive meet the laws of both
states, as much as possible.
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Can a physician,
hospital, or long term care facility require me or my family member to
have an advance directive?
No. A physician, health facility, health care provider, insurer, or health
care service plan may not require a person to execute or issue an advance
directive as a condition for obtaining insurance for health care services
or receiving health care services.
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What if I change
my mind once I am ill or in a health care institution?
Your stated preferences always supersede an advance directive. This applies
to adults as well as to minors. The advance directives should be reviewed
and or updated if there is a significant change in your health status.
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When does an advance
directive come into effect?
The directive to the physician becomes effective when you have a terminal
illness or irreversible condition AND you are no longer competent ("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") to make a health care choice. The Medical Power of Attorney,
DNR, and Directive for Mental Health Treatment become effective in the
event you are physically or mentally incapacitated and unable to make
a decision on your own behalf.
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Do I have to have
a written advance directive? Can I just tell someone what I want?
A written advance directive is recommended as a serious accident or illness
could render you unable to communicate with your health care providers..
However, you can make a verbal declaration to your physician if you are
able and competent You must make the declaration in front of your attending
physician and two additional witnesses should also be present. The physician
then must enter your declaration and the names of the witnesses into your
medical chart.
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How long is my advance
directive good for?
An advance directive in effect until you, or someone you ask (1) destroys
your directive; (2) writes and signs a revocation of the directive; or
(3) you orally say that revoke the directive. You or the person you ask
to revoke the directive must immediately notify the attending physician.
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When can I revoke my
advance directive?
You can revoke your advance directive at any time as long as you are legally
competent by following the steps described above.
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If I am a hospice
patient, what happens to my advance directive?
The hospice philosophy is one of providing comfort care and not using
life-sustaining treatment. You should complete documents to alter your
advance directive once you become a hospice patient as your advance directive
may be at odds with the goals of hospice. In some cases, the advance directive
may not apply if you are a hospice patient since their philosophy supersedes
these documents.
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I am pregnant. How
does that effect my advance directive?
A person may not withdraw or withhold life-sustaining treatment from a
pregnant patient.
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I have more than
one advance directive. Which one is valid?
The advance directive completed most recently in time is the one that
should be followed. For example, an advance directive completed this year
supersedes one made last year. You should destroy prior advance directives
and sign and date the advance directive that is current.
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Who can complete an advance
directive?
Any adult over 18 years of age or an emancipated minor who is competent
(legally able to make his or her own decisions) may complete a directive
at any time. Spouses (for adults), parents or guardians may complete directives
for unemancipated children under 18 or wards.
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Can children complete
advance directives?
No. Children cannot complete advance directives, however there may be
circumstances where their parents and legal guardians should execute an
advance directive on their behalf. If you wish to complete an advance
directive for a child, you should contact an attorney.
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Must I use a specific
form?
While Texas law provides a suggested form (which is included on this Website),
the state does not require the use of any specific form for an advance
directive. The law also states that no health care institution can require
you to use a specific form. At a minimum, an advance directive should
be dated and signed in front of competent adult witnesses or a notary
public.
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Must
I have my advance directive notarized?
Texas requires that your advance directive either be (1) signed by two
witnesses or (2) as of September 1, 2009, be witnessed by a notary public.
You do not need both forms of witnessing. Both are equally valid so the
choice is up to you.
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Where should I keep my
advance directive?
Since copies of advance directives are valid documents, you should make
multiple copies and keep them in many places. You should give copies to
your doctors, local hospitals you are likely to use, your designated power
of attorney for health care, family members, close friends and even your
family attorney. You may want to keep a copy in the glove box of your
car. The Texas Driver’s License also has a space on the back for
you to write in a phone number where someone who has your directive can
be reached. You should not keep your advance directive with your will
and other estate documents as these will usually only be read after a
person’s death. Your unsigned copy will also be stored at texaslivingwill.org
though without your signature and two witnesses (or notary public), it
will not be legally valid.
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If I do not want to have life-sustaining
treatment, but I do not want to be in pain or be abandoned. Is this a
valid concern? No. Texas law states that you must always have
comfort care measures including the treatment of pain even if you do not
elect to have life-sustaining treatment.
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Are there people who
cannot be a medical power of attorney?
Yes. Your health care proxy cannot be: (1) your health care provider;
(2) an employee of your health care provider, unless the person is your
relative; (3) your residential care provider; or (4) an employee of your
residential care provider, unless that person is your relative.
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I have appointed
my spouse as my medical power of attorney. Are there any limitations on
that?
Yes. If you and your spouse should divorce in the future, then the spouse’s
appointment as medical power of attorney ends at the divorce, unless you
indicate that you wish that appointment to extend beyond divorce. Thus,
if you make your spouse your medical power of attorney, then you should
also appoint a secondary decision-maker. In the event you divorce, you
should redo the medical power of attorney and other associated living
will documents.
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Are there limits
to what my medical power of attorney can do in regards to my health care?
Yes. Your proxy decision maker cannot consent to: (1) voluntary inpatient
mental health services; (2) convulsive treatment; (3) psychosurgery; (4)
abortion; or refusal of comfort care.
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If I do not have
a directive to the physician completed, but I do have a medical power
of attorney, then who will make health care decisions on my behalf?
If an adult qualified patient has not executed or issued a directive to
the physician and is incompetent or otherwise mentally or physically incapable
of communication, the attending physician and the patient's legal guardian
or an agent under a medical power of attorney may make a decision to initiate,
withhold or withdraw life-sustaining treatment from the patient.
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If I do not have a
directive to physician or a medical power of attorney, then who will make
my health care decisions?
If the patient does not have a legal guardian or an agent under a medical
power of attorney, the attending physician and one person, if available,
from one of the following categories, in the following priority, may make
a treatment decision that may include a decision to withhold or withdraw
life-sustaining treatment: (1) your spouse; (2) your reasonably available
adult children; (3) your parents; or (4) your nearest living relative.
If none of these persons are available, then your attending physician
in consultation with another physician who is not involved in your care
will make your health care choices.
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What if my medical
power of attorney makes decisions that are not in my best interest?
Under Texas law, if a physician believes that someone holding a medical
power of attorney is making health care choices that are not in the best
interest of the patient, then the doctor can challenge the treatment decisions
by involving the hospital or facility administrator and/or the ethics
committee of the facility.
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Who can serve as a
witness?
A completed advance directive needs the signature of two witnesses or
a notary public. Each witness must be a competent adult. At least one
of the witnesses must be a person who is not (i) a person designated by
you to make a treatment decision (your medical power of attorney); (ii)
a person related to you by blood or marriage; (iii) a person entitled
to any part of your estate after the your death; (iv) the attending physician;
(v) an employee of the attending physician; (vi) an employee of a health
care facility in which you are a patient if the employee is providing
direct patient care to you or is an officer, director, partner, or business
office employee of the health care facility or of any parent organization
of the health care facility; or (vii) a person who, at the time the written
advance directive is executed or, if the directive is a non-written directive
issued under this chapter, at the time the non-written directive is issued,
has a claim against any part of the your estate after your death.
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How does having
an advance directive affect my insurance?
The fact that a person has executed or issued an advance directive does
not: (i) restrict, inhibit, or impair in any manner the sale, procurement,
or issuance of a life insurance policy to that person; or (ii) modify
the terms of an existing life insurance policy. The fact that life-sustaining
treatment is withheld or withdrawn from an insured qualified patient under
this chapter does not legally impair or invalidate that person's life
insurance policy and may not be a factor for the purpose of determining,
under the life insurance policy, whether benefits are payable or the cause
of death. The fact that a person has executed or issued or failed to execute
or issue an advance directive may not be considered in any way in establishing
insurance premiums.
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What happens if someone
intentionally destroys my advance directive?
A person commits a legal offense if the person intentionally conceals,
cancels, defaces, obliterates, or damages another person's directive without
that person's consent.
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Assuming that I
am competent and able to communicate, can someone create an advance directive
for me without my permission?
No. Such a person would be charged with criminal homicide if the person,
with the intent to cause life-sustaining treatment to be withheld or withdrawn
from another person contrary to the other person's desires, falsifies
or forges a directive or intentionally conceals or withholds personal
knowledge of a revocation and thereby directly causes life-sustaining
treatment to be withheld or withdrawn from the other person with the result
that the other person's death is hastened.
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If I have a directive
and my family members disagree about my care, can they sue the physician?
A physician, who follows your directive and the orders of your appointed
medical power of attorney, is generally protected from civil or criminal
liability if the physician was following your directive and exercising
reasonable care.
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What happens if my
physician refuses to follow my advance directive?
If the physician or health care facility is not aware that you have a
directive, then they have no obligation to follow it. If the physician
knows of your directive and refuses to follow it, then life-sustaining
treatment will be administered until your care can be transferred to another
physician or health care institution that will honor your directive. The
ethics or medical committee at the institution will also review your case.
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