Directive to Physicians and Family

A medical power of attorney (MPOA) is both important and necessary as part of an effective estate plan, but by itself it may not be enough to ensure that your wishes about end-of-life care are carried out. An MPOA works together with a health care directive (also referred to as a living will) to clarify what kind of life-prolonging treatment you may want.

In Texas, the document that functions as a living will is called a Directive to Physicians and Family or Surrogates (Directive to Physicians). When you designate an agent to make medical decisions for you, that agent should be making the end-of-life decisions that you would make for yourself based on your own wishes and values - not decisions based on their own wishes and values. A Directive to Physicians ensures that your wishes are followed. Put simply, an MPOA designates who will make health care decisions for you when you can no longer make them yourself, while a Directive to Physicians expresses your wish about what those decisions should be.

While the MPOA broadly gives your agent the ability to make all kinds of medical decisions (with some exceptions), a Directive to Physicians is much more limited in scope. The Directive to Physicians gives you the ability to instruct your doctors not to use artificial methods to extend the natural process of dying, if that is your desire. Two conditions must be met before it comes into play:

• You must no longer be competent to make your own medical decisions (at this point, your agent would act on your behalf under your MPOA); and  
• Your physician must determine that you are suffering from:

1. A terminal condition from which you are expected to die within six months, even with available life-sustaining treatment; OR
2. An irreversible condition so that you cannot care for or make decisions for yourself and are expected to die without life-sustaining treatment.

Under these circumstances, the Directive to Physicians allows you to say whether you wish to have available life-sustaining treatment provided or withheld. You may also specify certain particular treatments that you do or do not want in specific situations, such as artificially administered nutrition and hydration or intravenous antibiotics. In any event, you will continue to be provided with the care necessary to keep you comfortable. Expressing your own wishes in this way removes the burden from your agent (who may well be a family member or other loved one) of having to make the decision to provide or withhold life-sustaining care.

One final form to take into account in this context is the Out of Hospital Do-Not-Resuscitate Order (DNR Order). While the Directive to Physicians is typically used in an in-patient hospital setting, this form allows you to declare that you do not want certain resuscitative measures used on you in an out-of-hospital setting - that is, for example, if you do not want paramedics responding in an emergency to use specific methods to resuscitate you, including CPR and defibrillation. Under the law, "out-of-hospital setting" means a location where health care professionals are called for assistance, including:

• long-term care facilities;
• in-patient hospice facilities;
• private homes;
• hospital outpatient or emergency departments; 
• physician's offices; and
• vehicles during transport.

As with the Directive to Physicians, a DNR order does not prohibit medical professionals from giving you care simply to make you comfortable.

Drawing up a medical power of attorney, a Directive to Physicians and Family, and an out of hospital DNR order require thinking about and planning for events that many of us consider unthinkable - our own potential incapacity, sickness, and death. But those things happen whether we plan for them or not. When you have become incapacitated, it is too late to begin thinking about what you want or how you would like to be cared for. If you don't have an agent, the court may have to appoint a guardian for you. This process takes time and costs money, and there is no guarantee that the court will appoint the person you would have chosen. Even if you have designated an agent, which is an excellent first step, that person may be confronting heartbreaking decisions while having to guess at your desires and preferences. The clearer the pathway that you lay out for them, the easier that path will be to follow. Call me at (903) 944-7537 today to discuss preparing an estate plan.