The Kinney Law Firm
A Professional Corporation
Control The Medical Care You Receive
By Owen T. Kinney
In America, the cultural processes preceding natural death receive less attention than any other inevitable human experience we know. The reasons for this are many, but none of them are any comfort to the patient suffering from a terminal disease, the thirty-five (35) year old car accident victim unable to speak or their families who simply want to do everything the loved one would want done and want to DO IT NOW.

The problem we all face is a health care delivery system and legal system designed for people who can legally be held accountable for their actions and decisions including when our very life hangs in the balance. Being held accountable is a less formal way to describe a person who is legally competent; for example, an adult as opposed to a minor, a sane adult as opposed to an insane adult, a competent adult as opposed to an adult in a coma, afflicted with Alzheimer・s disease etc. The legal definition of 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; (Health & Safety Code  ̄166.002(4))

Returning to our terminal cancer patient (who, let・s assume, is on enough pain medication that their Doctor doubts they can appreciate treatment options today) and yuppie accident victim, the question of competence becomes important for several reasons. First a hospital or individual Doctor will not undertake expensive medical treatment unless some competent individual makes a defacto contract with them to pay the bill. Second, no hospital/Doctor will undertake any medical procedure or treatment without legally binding authority from the patient to do so. To be binding, the patient must not be delirious or disoriented to the extent the above definition is not satisfied and the patient must be alert and sufficiently communicative to affirmatively state their treatment decision. Neither of our hypothetical patients would be considered by their Doctor to be competent whether the family requested such a determination or not. The threat of medical malpractice lawsuits coerce Doctors into refraining from treatment even they know their patient would request if possible and that which the Doctor would want if in the same circumstance. Unfortunately, or for good reason, depending on which of an infinite number of family/personal circumstances you might encounter, the Texas system has established complex rules for how we must anticipate these :end of life; situations if we are to stay in control of our medical care.

The Texas Legislature has adopted a great number of separate (and sometimes conflicting) laws addressing different aspects of this subject, but we will look at only three falling under one category of one Code. While the law on Powers of Attorney is voluminous, we need only consider what the Legislature has adopted on Advance Directives for Medical Treatment. It is crucial to know what Texas statutes say because enforceability of our advance instructions turns on whether our documents comply with the statute. The Directive to Physicians and Family (or so-called natural death option) and the Medical Power of Attorney are both advance instructions; the first states our wishes for the procedures and circumstances (to the extent controllable) surrounding our ultimate death, while the second designates a person to make our medical treatment decisions for us. Both of these documents only become effective at the time we lose competence to make our own decisions and they are neutralized when we regain that competence.

The Directive to Physicians and Family has a number of declarations that are statutorily required to be included in the document as well as prohibitions on some types of medical care that may not be declined by a patient through this document. Some people refer to it as a living will because it describes how a person wants the last stage of their life to unfold. Anyone who has suffered with a loved one experiencing uncontrollable pain in a hospital bed, knowing they will not leave the hospital alive, can appreciate the gift we give to ourselves and those who might be standing at our bed, by signing a Directive that reflects our personal, unique values and beliefs regarding artificial, mechanical life sustaining measures. It is not, unfortunately, as simple as saying .let me die in peace・ for the reasons stated above and the often significant financial, personal and religious values which our society honors.

The Medical Power of Attorney statute allows for a succession of agents if the primary individual is unable or unwilling to act. It is advisable to carefully consider the scope of authority given to the agent because this Power normally arises when a critical decision to save the patient・s life must be made. Remember, the hurdle is that the language in the Power has to give the Doctor enough comfort/protection to possibly undertake a life threatening surgery to correct a life threatening injury. In this situation, in the absence of a Medical Power of Attorney, either nothing happens, or the family must hire a lawyer to prepare a petition for guardianship to file with the probate court having proper jurisdiction and submit admissible medical evidence of the patient・s incompetence to make the medical decision in order for the court to determine who should be appointed as Guardian to make a medical decision which the Agent could have done under the Power. This can be a costly and time wasting ordeal compared to preparing and executing a Medical Power of Attorney while one is healthy

Additional legal steps to be considered by thoughtful people are an Out-of-Hospital Do-Not-Resuscitate Order and Organ Donation, but these procedures are beyond the scope of this article.

As in all matters upon which the Legislature has adopted laws, it is best to consult legal counsel in whom you have confidence in order to be confident that your goals will be achieved. This article is general in nature, cannot identify all exceptions to general statements due to length constraints and should not be relied upon for any actions without advice of an attorney who knows your specific situation.