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Advance Directive

An Explanation of  an Advance Directive

The purpose of a living will is to document an individual’s desires concerning his end-of-life medical treatment. However, a living will cannot guide medical decision-makers unless it certifies the following:

 

  • The living will creator is unable to make medical decisions on his own behalf, and
  • The living will creator is suffering with a terminal condition from which he is expected to die within six months, even with available life-sustaining treatment provided in accordance with prevailing standards of medical care or
  • The living will creator is suffering with an irreversible condition so that he cannot care for himself or make decisions for himself and is expected to die without life-sustaining treatment provided in accordance with prevailing standards of care.
  • “Irreversible condition” means a condition, injury, or illness:

(1)  that may be treated, but is never cured or eliminated;

(2)  that leaves a person unable to care for or make decisions for the person’s own self; and

(3)  that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.

Explanation:  Many serious illnesses such as cancer, failure of major organs (kidney, heart, liver, or lung), and serious brain disease such as Alzheimer’s dementia may be considered irreversible early on.  There is no cure, but the patient may be kept alive for prolonged periods of time if the patient receives life-sustaining treatments.  Late in the course of the same illness, the disease may be considered terminal when, even with treatment, the patient is expected to die.  You may wish to consider which burdens of treatment you would be willing to accept in an effort to achieve a particular outcome.  This is a very personal decision that you may wish to discuss with your physician, family, or other important persons in your life.

 

  • “Life-sustaining treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration.  The term does not include the administration of pain management medication, the performance of a medical procedure necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.
  • “Terminal condition” means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.

Explanation:  Many serious illnesses may be considered irreversible early in the course of the illness, but they may not be considered terminal until the disease is fairly advanced.  In thinking about terminal illness and its treatment, you again may wish to consider the relative benefits and burdens of treatment and discuss your wishes with your physician, family, or other important persons in your life.

 

An Explanation of a Medical Power of Attorney

A medical power of attorney, also known as a healthcare proxy, permits an individual to appoint a person whom he trusts to serve as his healthcare agent. Healthcare agents are sometimes referred to as surrogate decision makers. The health care agent must be authorized to make medical decisions on behalf of the individual in question.

 

A medical power of attorney cannot go into effect until the individual’s physician determines the individual is incapable of making his own medical decisions. Your agent is obligated to follow your instructions when making decisions on your behalf.  Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had. In addition:

 

  • If the individual regains the ability to make his own decisions, the healthcare agent can no longer act on that individual’s behalf.
  • Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment.
  • Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion.

Additional Important Information

In Texas, though the assistance of an attorney is not required to complete an advance directive, an advance directive is not legally valid until it is signed in front of a notary or signed by two competent adult witnesses. One of the witnesses may not be a person designated to make a health care or treatment decision for the patient and may not be related to the patient by blood or marriage.  In addition, this witness may not:

 

  • be entitled to any part of the estate;
  • have a claim against the estate of the patient;
  • be the attending physician or an employee of the attending physician; or
  • be an officer, director, partner, or business office employee of a health care facility in which the patient is being cared for or of any parent organization of the health care facility.

Advance directives are fully valid under United States law.Advance directives will not always be honored out-of-state. Some states will only honor advance directives if they are similar to their own laws. Certain states have left this area “grey” with a lack of explanation and direction. If you spend a large portion of your time in a state other than Texas, it is prudent to complete advance directives for both states.

 

There is no expiration date for advance directives. Your advance directive will be honored until your attorney amends it. If you compose a new advance directive, it automatically invalidates the previous advance directive.

 

You should periodically meet with Carol Bertsch to review your advance directives. This review will ensure that your advance directives reflect your desires. If you would like to modify your advance directive, consult with The Law Offices of Carol Bertsch to compose an entirely new document.

 

Out-of-Hospital Do-Not-Resuscitate program

Emergency medical technicians (EMTs) cannot honor a living will or a medical power of attorney. Once they are summoned, they must perform whatever medical assistance/treatment is necessary to stabilize the patient for a transfer to the hospital. Once a physician has performed a full evaluation of the patient’s condition and identifies the underlying condition, it is possible to implement advance directives.

 

The Out-of-Hospital Do-Not-Resuscitate program allows people to decide that they do not want to be resuscitated. The program allows people to declare that certain resuscitative measures will not be used on them. Those resuscitative measures specifically listed in the OOH DNR legislation are cardiopulmonary resuscitation (CPR), advanced airway management, defibrillation, artificial ventilations and transcutaneous cardiac pacing.

 

If you don’t want EMS to help you, you need an Out-of-Hospital Do-Not-Resuscitate (OOH DNR). Neither you nor your attorney may draft an OOH DNR. This form is a state form, which is free and must be signed by your doctor.  You can download the form here, and take it to your doctor for signature.

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