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FAQ
 

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.


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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