Texas Directive to Physicians

If anything good came out of the recent death of Terry Schiavo, it is that there is a new level of awareness for advance Directives for medical treatment. Because Terry Schiavo lacked a written Directive, unnecessary and costly legal wrangling prolonged an unfortunate situation, and has prompted many people to consider having such Directives prepared as part of their own estate plan.

There are two medical Directives that let you specify in advance what medical treatment you would want to receive if an illness or disability prevented you from making your own decisions. A Directive to Physicians (also know as a “living will”) identifies the medical treatment you wish to receive when you are facing death. A durable Medical Power of Attorney appoints a person to make medical decisions for you in the event you are unable to do so yourself.

The Directive to Physicians identifies the medical procedures you do or do not want to receive during your final illness. This document can provide your doctor with instructions on whether you want to receive life-sustaining treatment if you have a terminal condition or are in a persistent vegetative state, and the level of care you wish to receive. For example, you can decline artificial nutrition or hydration, or you can request that only pain-reducing medication be provided to you. A “terminal condition” is defined in the Texas Health and Safety Code as an incurable condition caused by injury, disease or illness that will result in death within six months, even if life-sustaining treatment was provided.

If you sign the Directive, you should inform your physician and ask that it be made part of your medical record. If you become physically or mentally unable to do so, another person may inform your physician.

Executing the Directive

The Directive must be witnessed by two competent adults. Texas law does not require that the Directive be notarized.

At least one witness cannot be a person who:

(1) is related to you by blood or marriage;
(2) has a claim on your estate;
(3) has been designated by you to make a health care treatment decision on your behalf;
your attending physician;
(4) is employed by your attending physician;
(5) is an employee of a health care facility in which you reside, if the employee is involved in 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.

Effect of Directive

The Directive becomes effective - meaning that life-sustaining treatment can be withdrawn - only when you become a "qualified patient." A qualified patient means a patient with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician.

You should be aware that no one may force you to sign the Directive. No one may deny you insurance or health care services because you have chosen not to sign it. If you do sign the Directive, it will not affect your insurance or any other rights you may have to accept or reject medical treatment. If your attending physician chooses not to follow the Directive, your physician must make a reasonable effort to transfer responsibility for your care to another physician.

You may designate another person to make treatment decisions for you if you become incompetent, or are otherwise mentally or physically incapable of communication. However, you do not have to do so in order for the Directive to be a legal document. If you do, that designated person may also execute an out-of-hospital do-not-resuscitate order

Enforceability of a Directive Executed in Another Jurisdiction

A Directive or similar instrument validly executed in another state shall be given the same effect as a Directive validly executed under the law of Texas. This does not authorize the administration, withholding, or withdrawal of health care otherwise prohibited by the law of this state.

Revocation

The Directive is valid until it is revoked. You may revoke the Directive at any time, even in the final stages of a terminal illness. If you revoke the Directive, be sure your physician is told of your decision. The physician or the physician designee shall record in the patient's medical record the time and date when the physician received notice of the revocation and shall enter the word "VOID" on each page of the copy of the Directive in the patient's medical record. If you change your mind after executing a Directive, your expressed desire to receive life-sustaining treatment will at all times supersede the effect of a Directive.

Here is a link to website containing a Texas Directive to Physicians form:

http://www.peopleslawyer.net/willform.html