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(Maintaining Control of Personal Decision Making)
Erwin Davenport
Gibson, Hotchkiss & Davenport
Most individuals, when given the choice, would much rather have a trusted family member or friend making decisions with respect the their business, personal care and medical treatment than to have a court appointed guardian make these decisions. Texas law allows a competent adult to execute documents which allow for the management of his or her business and personal affairs in the event of disability. This paper will describe the various types of advanced directives and powers of attorney available and will also briefly describe some other useful tools available to keep decision making in the family and to avoid guardianship. Proper planning for disability will hopefully avoid the necessity of court involvement in the incapacitated person's personal decision making.
An incapacitated person is defined by the Texas Probate Code as an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs. The Probate Code also defines a minor as an incapacitated person. A child's parents are the natural guardians of the person of a minor child, but are not the guardians' of the estate of a minor child unless appointed by a court. Only one parent may be appointed guardian of a child's estate. As a child's natural guardian, parents have authority to make decisions regarding the child's health care, schooling, residence etc, but unless appointed by the court, do not have authority over the child's estate.
I have intentionally omitted references to Codes and Statutes.
- Medical Treatment.
- Medical Power of Attorney. A competent adult my execute a medical power of attorney. The signing of a disclosure statement is mandatory to the validity of the Medical Power of Attorney. Appointment of a Guardian does not automatically revoke a medical power of attorney. If a guardianship is instituted, the probate court has authority to determine whether to suspend or revoke the authority of an agent under a medical power of attorney and must consider the preferences of the principal expressed in the medical power.
Medical power of attorney means a document executed or issued under the Health and Safety Code, that delegates to an agent the authority make health care decisions. The medical power of attorney becomes effective upon the incompetence of the Principal. Under the health and safety code incompetent is defined as lacking 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. The agent does not acquire authority to act under a medical power of attorney until the principal's attending physician certifies in writing that, based on the attending physicians reasonable medical judgment, the principal is incompetent.
Once a medical power of attorney goes into effect because the principal has become incompetent, the principal's wishes continue to govern the extent of power transferred. The principal's wishes may not be ignored. Regardless of the medical power of attorney and the principal's incompetence, treatment my not be given to or withheld from the principal if the principal objects. It is the agent's duty, after consulting with the doctor and other health care professionals, to make medical decisions for the principal in accordance with the principal's wishes, including the principal's religious and moral beliefs. If the agent does not know the principal's wishes the agent must make medical decisions according to the agent's assessment of the principal's best interests.
The agent has authority to obtain medical information regarding the principal to help in making a health care decision. The agent may execute a necessary release.
The agent does not have authority to consent to voluntary inpatient mental health services, convulsive treatment, psycho surgery, abortion or neglect of the principal through the omission of care primarily intended for the comfort of the principal.
The medical power of attorney is not effective unless the principal acknowledges in writing reading the disclosure state prior to signing the medical power. The medical power of attorney must be witnessed by two qualified witnesses who must be competent adults. At least one of the witnesses must not be a person designated by the declarant to make treatment decisions, a person related to the declarant by blood or marriage, a person entitled to any portion of the declarant's estate, the attending physician or an employee of the attending physician, an employee of a health care facility in which the declarant is a patient if the employee is providing direct patient care to the declarant or is an officer, director partner, or business office employee of the health care facility, or 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, has a claim against any part of the declarant's estate after the declarant's death.
If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal's name in the principal's presence and at the principal's direction. A medical power of attorney validly executed in another state or jurisdiction must be given the same effect as a medical power of attorney validly executed under Texas law.
The contents of the medical power of attorney must be substantially identical to the statutory form.
An agent is a person to whom a principal has delegated the authority to make health care decisions under a medical power of attorney. A person may not exercise the authority of an agent while a person serves as the principal's health care provider, an employee of the principal's health care provider, the principal's residential care provider or an employee of the principal's residential care provider, unless the person is a relative of the principal.
An agent is not subject to civil or criminal liability for a health care decision if the decision is made in good faith under the terms of the medical power of attorney and the statutory provisions. The agent does not assume payment of the principal's medical bills by acting under the medical power of attorney.
If a principal's health or residential care provider is aware of a medical power of attorney, he or she is required to follow a directive of the principal's agent to the extent it is consistent with the desires of the principal, the statutes governing medical powers of attorney, and the medical power of attorney itself. The attending physician has a duty to make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing the agent's medical power of attorney. If the principal objects, the principal's desires must be given priority over the agent's directives. Nevertheless, the attending physician does not have a duty to verify that the agent's directive conforms to the principal's wishes or with the principal's religious or moral beliefs. If the health care provider finds it impossible to follow the agent's directive because of conflict with regulations or the medical power of attorney itself, the health care provider must inform the agent as soon as possible. If the agent's directive concerns providing, withholding or withdrawing life sustaining treatment, specific statutory procedures must be followed. The agent has no power to require a health care provider or residential care provider to act contrary to the physician's order.
The law provides for limited liability of the physician, health care provider or residential care provider in following the directive of the agent. The actions must be undertaken in good faith and not constitute a failure to exercise reasonable care in the provision of health care services.
An agent's power under a medical power of attorney is effective only during the principal's incompetence. An agent's authority may be affected by the court appointment of a guardian for the principal. The probate court may be asked to suspend the authority of an agent under a medical power. In ruling on such a motion, the court must consider the preferences of the principal as expressed in the medical power of attorney, Until the motion is heard, the guardian, not the agent, has the sole authority to make any health care decisions unless the court orders otherwise. The health care provider who does not have actual knowledge of the court's order may implement the agent's directive without incurring liability.
The medical power of attorney is revoked in accordance with the provisions of the Health and Safety Code. Generally oral or written notification by the principal either to the agent or the health care provider is effective to revoke the medical power. District Court proceedings may be instituted by an interested adult for a court revocation of the medical power in proper circumstances.
- Directive to Physicians. The declarant must sign the directive in the presence of two qualified witnesses. The witnesses must sign the document. To be qualified the witnesses must be competent adults. At least one of the witnesses must not be an interested witness under the statutory scheme which includes a person named by the declarant to make treatment decisions, a person related to the declarant by blood or marriage, a person entitled to any portion of the declarant's estate, the attending physician or any employee of the attending physician, an employee of the health care provider involved in direct care, or an owner, partner etc. or employee of the business office of the health care provider, or a person having a claim against the estate of the declarant.
A non written directive may be given under certain circumstances. Such a directive must be made a part of the declarant's medical record.
A directive is effective until it is revoked. Life sustaining treatment may not be withheld or withdrawn if the patient is pregnant. A person who makes a directive may continue to make health care decisions as long as he or she is able to do so. The desire of a qualified patient, including a qualified patient under 18, supercedes the effect of a directive. Patient means a person diagnosed with a terminal or irreversible condition. A written directive becomes operative when the attending physician is notified of its existence and certifies the declarant as a qualified patient on diagnosis of a terminal or irreversible condition. If the patient becomes incapable of communication, the physician must comply with the directive unless the physician believes that the directive does not reflect the patient's present desire. If the patient has named a person to make a treatment decision, the designated person and the physician may make the treatment decision together.
The declarant may revoke the directive at any time without regard to the declarant's mental state or competency.
The signing of an advanced directive does not restrict, inhibit, or impair the sale, procurement, or issuance of a life insurance policy to that person or modify the terms of an existing policy.
The Advanced Directives Act limits the civil and criminal liability of physicians and other health care providers.
- Relationship Between Directive and Medical Power of Attorney. Both a medical power of attorney and a directive to physicians may be used to authorize medical decisions for persons unable to make such decisions themselves. Many individuals will want to execute both a medical power of attorney and a directive. Care must be taken to insure that the advanced directives do not conflict with each other.
- Out of Hospital Do Not Resuscitate Order (DNR Order). The DNR order is another form of advanced directive for medical treatment. This is a legally binding order that directs health care professionals acting in an out of hospital setting not to initiate or continue certain life sustaining treatment. A person who has a valid DNR may wear a DNR identification device and the presence of the device is conclusive evidence that the DNR exists. Similarly, responding health care professionals must honor a DNR of they discover an executed or issued original DNR at the scene. Unless the patient is wearing the necklace or bracelet, the patient must have the original DNR form. A photocopy will not be honored in the absence of a necklace or bracelet
A competent person may execute a DNR on his or her behalf. A physician may execute a DNR on behalf of an incompetent person who has previously executed a directive, or the person named in the directive to make treatment decisions may execute the DNR. An agent named in medical power of attorney may make the decisions regarding the DNR order. In situations where none of the above exists, a qualified family member together with the attending physician, may execute the DNR.
When a person above 18 has issued a DNR and thereafter becomes incompetent and has executed a directive, the person named in the directive and the attending physician must comply with the DNR, or if there is no person so named, then the attending physician must comply unless it is his or her belief that the DNR does not conform to the patient's current wishes. If the person has not executed a DNR, then the attending physician and the person's, guardian, medical agent or if none then a qualified family member may execute a DNR
The DNR order must be created on the official form adopted by the Texas Department of Health. The form must be properly witnessed. The DNR may be revoked. The existence of the DNR gives protection to health care providers acting in good faith in reliance on the DNR.
- Consent to Medical Treatment Act. To be used in non emergency situations fo incapacitated adult patients whose medical conditions do not involve the withholding or withdrawing of life sustaining treatment and used only where the patient has not executed a medical power of attorney. The following adult persons in the following order of priority may make a medical decision for an incapacitated adult patient: spouse, adult child with the waiver and consent of all other qualified adult children of the patient to act as the sole decision maker; a majority of the reasonably available adult children; parents, or the individual clearly identified to act by the patient before the patient became incapacitated, the patient's nearest living relative, or a member of the clergy. A surrogate decision maker may not consent voluntary in patient mental health treatment electro convulsive treatment or the appointment of another decision maker. The prerequisites for consent by a surrogate decision maker is that the adult patient must be in a hospital or nursing home and be comatose, incapacitated, or otherwise mentally or physically incapable of communication and in need of medical treatment. If the consent is not make in person, the consent must be reduced to writing in the patient's medical record and signed by the hospital or nursing home stall receiving the notice.
- Emergency Medical Treatment. Consent for emergency medical care of an individual is not required if an individual is unable to communicate because of injury, accident or illness and is suffering from life threatening injury.
- Mental Health Treatment. A Declaration for Mental Health Treatment can only be executed by a person with capacity. The declaration is only effective upon execution and it is valid for only three years from the date of execution unless the declarant is incapacitated in which case it stays effective until the incapacity has concluded. The declaration may include consent to or refusal of mental health treatment.
- Business Matters
- Durable Power of Attorney. The Durable Power of Attorney Act allows for powers of attorney which will continue in the event of future incapacity of the Principal. The Durable Power of Attorney Act is found in the Texas Probate Code. The Act provides for a statutory form for Durable Power of Attorney. It is usually advisable to use the statutory form, which can be custom made with special provisions if necessary, such as the authority of the agent to make gifts for tax purposes, deal with oil and gas properties, or even the authority in the agent to create a revocable living trust. The agent under the durable power of attorney will be able to manage the business affairs of the principal to the extent set forth in the power of attorney, even if the principal later becomes incapacitated. It is usually advisable to include language that insures that the statutory durable power of attorney is a general power of attorney.
- Designation of Guardian. This section of the probate code allows an adult individual to name who that person desires to be appointed guardian if appointment later becomes necessary due to incapacity. The designation can be for both the person and estate and can also specifically prohibit an individual or individuals from serving. This can be useful when the person named as agent and the order of priority of appointment as guardian is different. By designating the person named as agent as guardian, an individual may be able to discourage the filing of guardianship proceedings, since the appointment of a guardian of the estate revokes the power of attorney.
- Management of Community Property. This allows a spouse to continue to manage the community property in the event of incapacity of the other spouse. There must be a judicial declaration of incapacity. There would then be no guardianship necessary unless the incapacitated spouse owned separate property.
- Revocable Management Trust. This tool is often useful when a power of attorney may not be adequate to manage property. If a person has capacity to create the trust and assets are funded into the trust, guardianship may be avoided. The revocable trust is also a useful tool to use if assets are owned outside Texas or if there are privacy concerns
- Court Created Trusts. This provisions allows a court to create a trust for an incapacitated individual in certain instances. The trustee, however, must be a corporate trustee.
- Miller Trusts. Allows for the creation of a trust in certain limited instances in order to allow individuals who have too much income to qualify for medicaid benefits for long term nursing home care.
- Representative Payee. Allows an individual to receive social security benefits on behalf of an incapacitated individual.
- Conclusion. There are many useful tools available to maintain control of personal decision making for both medical and business matters. As in every aspect of life, the more advanced planning that takes place, the better the results. Every individual and family, whether the estate is large or small, should engage the services of a qualified estate planning attorney to put the best plan in place to meet their individual needs.
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