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March 2nd, 2009
Freethought San Marcos: While death can’t be avoided, Texas law can help with the details

Freethought San Marcos: A column

It has been a difficult week to write a column. My 92-year old dad had to have some minor surgery and a good friend of over 40 years died. Early in the week, I read a column by Jane Brody in the New York Times about why some people have problems about medical treatment as they get nearer death, a time when advance directives can be useful.

While I’ve studied, written, and lectured about advance directives for 16 years, the events of this week have focused my mind on the importance of some minimal advance planning to be sure that one’s wishes about medical care and dying are carried out appropriately, and that one’s financial affairs are handled correctly and with dispatch.

Advance directives, while given a technical meaning in Texas law related to medical decisions, is a term commonly used to refer to any directive executed in advance of need. Some of these merely express one’s wishes, but most of them have the force of law. Whatever your age, if you are concerned about having your decisions about medical care and the end of life honored, you should use advance directives to do advance planning.

Beginning with the official Texas advance directives, here is a list of some of the most common and useful directives:

1. Directive to Physicians, Family, and Surrogates (called a Living Will by some)

2. Medical Power of Attorney (MPOA)

3. Out-of-hospital Do-not-resuscitate order (OOH-DNR)

4. Statutory Durable Power of Attorney (for financial decision-making)

5. Appointment of Agent to Control Disposition of Remains

6. Body Disposition Authorization Affidavit

The Directive to Physicians is a document that permits you to express your wishes about extraordinary (often futile) medical efforts near the end of life. It gives doctors, relatives, and friends a good idea about how you feel about medical care if you have a terminal illness or an irreversible condition which may end your life in the near term. It is an advisory directive. It is not legally binding. Unlike similar instruments in many other states, the official Texas Directive to Physicians includes refusing artificial hydration and nutrition as a treatment. The option to refuse such treatment means that a person can die with minimal pain, which usually can be controlled with medication, and death is not prolonged, often coming within a few days after hydration is discontinued. Severely incapacitating strokes, ALS, dementia, Alzheimer’s, and other medical conditions through which a person does not wish to live can be ended if hydration and nutrition are discontinued. Texas’s Directive to Physicians allows a person to refuse such treatment, in advance.

The Medical Power of Attorney allows you to appoint an agent to make medical decisions for you if you are not able to make them because you have lost the ability to do so, either temporarily (as during a surgery) or permanently (if you become irreversibly mentally incapacitated). It is an essential document for all people to have.

If you do not want attempts made to resuscitate you if your heart stops beating, you may want to have the OOH-DNR order. Often, the weak or fragile condition of the individual makes such resuscitation efforts less desirable than death because of the additional pain the efforts might cause. These efforts can break bones and ribs and tear tissue in a feeble body. If the effort is successful, the remaining life is often severely limited and the person may well suffer more than before the cardiac failure that led to the resuscitation attempt. An OOH-DNR order is issued by a medical doctor after consultation with the patient or the patient’s medical agent.

The Statutory Durable Power of Attorney (SDPOA) is used to name a financial agent, someone who can make financial decisions if a person becomes unable to do so. It must be notarized. Much like the Medical Power of Attorney, the SDPOA can be used if you cannot make financial decisions or sign documents temporarily (if under sedation or traveling away from home, for example) or if you become mentally incapacitated to the extent that you cannot manage your financial affairs. The statutory form allows a choice of making the POA effective immediately or only if you become mentally incapacitated as determined by a medical doctor. I have found that it is more useful to have the form take effect upon execution, but this is an individual decision to be made by each person depending on circumstances.

The MPOA and the SDPOA, taken together, almost always succeed in avoiding the expense and complications of a guardianship, should one become necessary in the future. For this reason, I recommend them to all my clients as a way to avoid the need for a guardianship.

The Appointment of Agent to Control Disposition of Remains allows you to name someone who will have legal authority to make final disposition decisions for your body after death. This form is used in many cases to eliminate confusion or disagreements among relatives about disposition choices. This form, like the SDPOA, must be notarized.

The Body Disposition Authorization Affidavit allows you to choose the exact manner of body disposition, and also must be notarized. Using this form eliminates any doubt about your wishes, and under Texas law it must be honored by funeral officials.

If you are not completely satisfied by the options provided by the Directive to Physicians or the Medical Power of Attorney, supplemental instructions, including a chart of medical conditions and treatments, may be appended to both instruments to make sure that yours wishes are clear. And you can write a personal statement that explains your views and thoughts on the subject of death, dying, suffering, dignity, etc. and attach it to either directive. The Medical Agent’s job is to assure that your wishes are honored. Be sure to select someone as your Medical Agent who you believe can and will carry out your wishes, and select an alternate who will be equally diligent.

Jane Brody’s column suggests that it is wise to have a copy of your medical directives with you at all times. A copy of each one could be put in the glove box of your vehicle or carried in a purse. In addition, there are bracelets and pendants that can be purchased and worn to convey some information about your wishes. Some people have had tatoos placed on their body to make clear that they have instructions about their medical wishes. There may be other technologically advanced efforts that can be taken, but there is nothing that can be done that is foolproof to make your wishes known in every situation. All you can do is take steps to assure that your wishes are known to all who might need to know them.

But the most important step is to complete those advance directives that you might want or need, and do it now. A few years ago, four other couples, along with my wife and me, spent an evening having an advance directives party. The actual signing and witnessing the completion of the forms took only about 45 minutes, but it gave us all an opportunity to get this necessary task done in an enjoyable environment, sharing ideas and feelings with friends, sitting around a dining room table. The party was a success and has been, to our sorrow, useful to some of our group. If you won’t do it for yourself, do it for the rest of your family. The Texas forms can be found here.

© Freethought San Marcos, Lamar W. Hankins

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2 thoughts on “Freethought San Marcos: While death can’t be avoided, Texas law can help with the details

  1. My wife & I did the MPOA and living will years ago, but we were not aware of the need for items 3-6 on your list. Thank you!

  2. Mr. Hankins, I’ve been reading your columns and I just want to say “THANK YOU” so much for your knowledge and advice on these topics that all will have to face some time in our lives. You have provided me with some very good information. I hope you continue to write and give out info that you see useful. THANKS AGAIN!!

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