II.  ADVANCED MEDICAL DIRECTIVES

The Federal Patient Self Determination Act 42 USCA
§1395cc(f) requires health care providers, to be
eligible for Medicare and Medicaid payments, to supply
patients with information regarding Medical Powers of
Attorney as well as Directives to Physicians. Patients
are to be given information regarding their rights under
Texas law to make decisions regarding medical care
(including the right to accept or refuse treatment) and
the right to formulate advance directives.

In 1999, a new Chapter 166 of the Health and Safety
Code consolidates the location of the law regarding the
1) the Medical Power of Attorney, 2) and the Directive
to physicians. and 3) the "Out of Hospital Do Not
Resuscitate" form.  The new chapter also gives us
some common definitions to be used among all three
documents

9. Medical Power of Attorney - §166.151, Health &
Safety Code  The most commonly used tool to avoid
guardianship, the Medical Power of Attorney (formerly
the Durable Power of Attorney for Health Care) is a
creature of statute and should be prepared and
executed with close attention to the statutory scheme
set out in the Health & Safety Code. The
statutory form is now mandatory as of September 1,
1999.

Most prudent estate planners will include the Medical
Power of Attorney along with a Will and Durable Power
of Attorney in a basic estate plan.   The Medical Power
of Attorney is not automatically revoked upon the
appointment of a guardian.

The court may choose to suspend or revoke the power
of the agent or to leave the Medical Power of Attorney
in place as a less restrictive alternative.  CAVEAT:
Nursing homes and hospitals may be reluctant to
accept Medical Powers of Attorney which are executed
made close to the time they are needed, particularly if
the patient's capacity is questionable.

10. Directive to Physicians and Family or Surrogates
("Living Will") – §166.031, Health and Safety Code The
newly revised and renamed form also now requires a
disclosure statement (much like in the medical power of
attorney), a place to indicate a choice between two
treatment options, and a place for designation of an
agent.  The Directive interrelates to the Medical Power
of Attorney in that it instructs the principal not to
designate an agent on the Directive if a Medical Power
has been executed.   Unlike the new mandatory form
for the Medical Power, the new Directive form is
permissive.

Intractable Pain Treatment Act.  Art. 4495c.  The Texas
Intractable Pain Treatment Act, enacted in 1995, was
the first state statute in the nation designed to protect
doctors for prescribing morphine to terminal patients
for pain management during end-stage treatments
without fear of professional disciplinary action for
addicting the patients. See  
www.medsch.wisc.
edu/painpolicy. the website for the Pain & Policy
Studies Group of the University of Wisconsin Medical
School for additional information and discussion on
pain management policy.

11. Out of Hospital DNR (“EMTDNR”) - §166.081
Health and Safety Code – requires the ambulance
personnel to let you die if that is your expressed wish.  
The tricky thing is having the right document or
indicator available.  This is one form that an attorney
cannot prepare.  The forms are actually printed by the
Texas Department of Health. Only the officially printed
forms (with red ink in the right places) will be honored
by the EMTs.  The Texas Department of Health has
information on ordering the forms and necessary
identifying bracelets at
http://www.tdh.state.tx.
us/hcqs/ems/index.htm#EMSRESOURCES .    

12.The Patient’s Intent, If Known: A statement of End
Stage Planning such as the ‘Five Wishes’ Pamphlet:
www.agingwithdignity.com
With or without legal assistance, a person may express
his or her wishes and desires as to treatment decisions
as disability or death approach.  The oldest and most
widespread of these if the “Five Wishes,” a pamphlet
developed in Florida and used in 33 states.  It
combines 1) surrogate decision making, 2) a medical
power of attorney and 3) palliative care choices,
many of which are sufficiently thought-provoking to
promote some discussion on the topic with the one
considering such choices.  
CAVEAT: Because of the stringent witnessing
requirements under the Advanced Medical Directives
Act (Ch. 166, Health & Safety Code) and the
mandatory nature of the form of the Texas Medical
Power of Attorney, the universal Five Wishes™
pamphlet has not been implemented in Texas.   

However, even if not fully compliant as a Medical Power
of Attorney or Living Will, Texas law does require that
the patient’s wishes, if known, are to be followed, (e.g.:
Health & Safety Code §166.152(e)(1)).  As a result, the
Five Wishes may still function as a statement of the
patient’s intent.  This is an elegant, caring way to allow
a client/patient to express those wishes.   Aging with
Dignity may be contacted via their website http://www.
agingwithdignity.com or at: Aging with Dignity, P.O. Box
1661, Tallahassee, Florida 32302-1661
Ph: 850.681.2010, Fax: 850.681.2481  
Here is some excellent
information on alternatives to
guardianship.  This is to aid
you in the process and
educate you in your choice of
attorney.  It is not specific
legal advice and will not, by
itself, constitute an attorney /
client relationship.  

Special thanks to Judge King
in the first Tarrant County
Probate Court, on whose
material this is largely based.

Avoiding Guardianship of
the person

Advanced Medical Directives

Avoiding a Guardianship of
the Estate

Limiting the Effect of the
Guardianship
Law Office of Eric J. Smith
1008 North Davis
Arlington, Texas 76012
ph: 817-860-2800
fax: 817-860-2801
eric@midcitieslaw.com
Copyright  2007 - 2017 Eric J. Smith All rights reserved.