Medical Power of Attorney Co-Agents a Troubling Idea

TMA Testimony on House Bill 3095 

House Committee on Judiciary and Civil Practices
Texas Medical Association/Texas Hospital Association

April 21, 2015

On behalf of the 48,000 physician and student members of the Texas Medical Association and the 500 members of the Texas Hospital Association, we regretfully must file our opposition to House Bill 3095 in its current form. The Texas Medical Association (TMA) and Texas Hospital Association (THA0 appreciate the effort and intentions of Rep. Senfronia Thompson to revise certain provisions related to powers of attorney. Although we have no comments on the changes to the Texas Estates Code, the proposed revisions to the advance directives provisions in the Health & Safety Code present multiple problems. We urge all Texans to take the initiative to prepare an advanced directive and to provide clear directions for decision making in case they become unable to speak for themselves. Our main request is for clarity in communication of all these decisions.

The primary purpose of a medical power of attorney is to clarify communications about medical decisionmaking for individuals who lose the ability to decide for themselves or express their own wishes. Often the necessary medical decisions must be made rapidly in very difficult circumstances and can be the subject of disagreements among family members or loved ones. The purpose of assigning a medical power of attorney to one individual is to inform physicians and medical care providers about who is speaking for the patient, to avoid conflict and confusion. When an individual does not wish to make this type of designation, a medical power of attorney document is neither helpful nor appropriate. 

As you know, advance directives and medical power of attorney are very important in regard to care decisions and end-of-life discussions and the decision-making process under Chapter 166 of the Health & Safety Code. Chapter 166 has been very carefully constructed and revised to balance the competing duties of various stakeholders including patients, religious groups, physicians, health care providers, and various advocacy organizations. The proposed changes in HB 3095 interact in multiple ways with other provisions within Chapter 166. Changes in advance directives provisions need to be approached in a careful deliberative process that includes all affected parties. 

TMA and THA believe designated co-agents for health care decisions would make challenging and complex situations even more difficult and confusing. Under this language, any co-agent may act independently, and a third party may rely on the decisions of any co-agent. Probate attorneys have suggested that in the event of a disagreement between co-agents, the physician or health care provider may refuse to accept the medical power of attorney with respect to that matter. This does not help a physician or hospital when trying to make critical end-of-life decisions, which may or may not include the decisions related to the provision or withdrawal of life-sustaining treatment. We are sure that we do not have to remind the committee of the sensitive nature of that topic and related legislation.

TMA and THA have multiple concerns with the changes proposed in HB 3095 including:  

  1. the designation of co-agents and the confusion that may result from multiple agents being authorized to act independently; 
  2. changing the statutory medical power of attorney form to a permissive form and directly referencing the American Bar Association (ABA) website in statute as an alternative form; (Reference to a website in statute does not ensure the document on that website is accurate, current, or available at any current or future time and may create the appearance of delegating rule-making authority to a non-governmental organization.) 
  3. the reference to the Veterans Affairs (VA) form or similar documents and the requirements of the U.S. Department of Veterans Affairs is broad, and there is no reference to the related law, creating uncertainty for all affected parties.
  4. the retroactivity of the changes in law contemplated by this bill, which includes application to a medical power of attorney that is pending on the effective date of the act. 

When TMA and THA expressed our concerns to the probate attorney organizations, the response suggested that co-agents would be no worse than current law, as the Texas Consent to Medical Treatment Act gives all children equal priority to make decisions in the absence of a medical power of attorney. While it is true that current law sometimes allows multiple decisionmakers, the designation of a power of attorney is designed to solve that problem, not expand it. Individuals who want co-agents should decide for themselves who takes priority when there are disagreements, then draft documents that reflect that desire. If the desire is for all medical decisions to be made through a consensus process, this proposed provision does not achieve that end, as it allows each agent to make decisions independently. Furthermore, reaching consensus is often not possible when decisions are urgent and there is no time for deliberation. 

Also note that Health & Safety Code Ch. 313, which governs medical decisionmaking, does not apply to:

      “(1) a decision to withhold or withdraw life-sustaining treatment from qualified terminal or irreversible patients under Subchapter B, Chapter 166; 

      (2) a health care decision made under a medical power of attorney under Subchapter D, Chapter 166, or under Chapter XII, Texas Probate Code; 

      (3) consent to medical treatment of minors under Chapter 32, Family Code; 

      (4) consent for emergency care under Chapter 773; 

      (5) hospital patient transfers under Chapter 241; or 

      (6) a patient's legal guardian who has the authority to make a decision regarding the patient's medical treatment.” 

Additionally, this chapter does not authorize a decision to withhold or withdraw life-sustaining treatment. So you can see that in reality, a substantial number of health care scenarios would be left in limbo without a specific final surrogate voice.

We continue to have multiple problems and questions about the proposed revisions to advance directives law. For example, it’s not clear why the language concerning when the power of attorney is effective is being changed from the current “takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician” to “is effective only when, in the opinion of my attending physician, I am incompetent or I am unable to make and communicate a choice about a particular health care decision.” We ask why this change is needed or how it improves current law.

We are also concerned with making this legislation and application of law retroactive to preexisting situations. Our understanding is that the retroactive date is intended to make documents that may already have been drafted and executed (that were not in compliance with the law when drafted) become in compliance with the law. How will this impact existing health care situations? Will this negatively impact physicians and health care providers who had been complying with existing law previously and now could be subject to discipline or lawsuit because the law was changed retroactively? 

TMA and THA appreciate the opportunity to offer this testimony and suggest that all the changes to Chapter 166 of Health & Safety Code be removed from this bill at this time. We would be happy to work with interested parties in the future to carefully consider appropriate revisions 

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