Death Act: Directive to Physicians

 

 

 Directive to Physicians (PDF)

Note: The Texas Legislature passed a law in the 85th 1st Called Session that will impact some of the information in this document. That law becomes effective April 1, 2018 and rules interpreting that law should be adopted sometime around that date. After April 1, 2018, please look for an updated version of this document that accounts for the new law and rules. In the meantime, if there are any questions about the application of that new law, please consult with private counsel.

 


Information and Directives

 

The Texas Health and Safety Code, Chapter 166, authorizes the use of a written Directive to Physicians (“DIRECTIVE”) in accordance with the guidelines set out below.

Published courtesy of the Texas Medical Association Board of Councilors, 401 W. 15th St., Austin, TX 78701-1680; (512) 370-1341.

January 2019

Information for Signers 

General Information

If you are at least 18 years old, of sound mind, and acting on your own free will, you may sign a DIRECTIVE TO PHYSICIANS (“DIRECTIVE”) concerning your own care in the presence of two qualified witnesses or may have the signature acknowledged by a notary public. The DIRECTIVE allows you to instruct your physician not to use artificial methods to extend the natural process of dying. Before signing the DIRECTIVE, you may ask advice from anyone you wish, including your attorney.

If you sign the DIRECTIVE, you must tell your physician. Ask that it be made part of your medical record. If you have signed a written DIRECTIVE of which your doctor is unaware, inform your doctor of its existence. If you become physically or mentally unable to do so, another person may inform your physician. 

Witnesses

The DIRECTIVE must be witnessed by two competent adults, or the declarant’s signature of the DIRECTIVE may be acknowledged by a notary public.

At least one witness cannot be a person who:

(a) Has been designated by you to make a health care or treatment decision on your behalf;
(b) Is related to you by blood or marriage;
(c) Is entitled to any part of your estate;
(d) Is your attending physician;
(e) Is employed by your attending physician;
(f) Is an employee of a health care facility in which you reside, if the employee is involved in providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; and
(g) Has a claim on any part of your estate after your death.§166.003

Effect of Directive

The DIRECTIVE becomes effective ¾ meaning that life-sustaining treatment can be withdrawn ¾ only when you become a "qualified patient." A qualified patient means a patient with a terminal or irreversible condition who has been diagnosed and certified in writing by the attending physician. §166.031

No one may force you to sign the DIRECTIVE. No one may deny you insurance or health care services because you have chosen not to sign it. If you do sign the DIRECTIVE, it will not affect your insurance or any other rights you may have to accept or reject medical treatment. If your attending physician chooses not to follow the DIRECTIVE, he or she must make a reasonable effort to transfer responsibility for your care to another physician. §166.007

You may designate another person to make health care or treatment decisions for you if you become incompetent, or are otherwise mentally or physically incapable of communication. However, you do not have to do so in order for the DIRECTIVE to be a legal document. If you do, that designated person also may execute an out-of-hospital do-not-resuscitate order. §166.032(c)

Enforceability of a Directive Executed in Another Jurisdiction

A directive or similar instrument validly executed in another jurisdiction shall be given the same effect as a DIRECTIVE validly executed under the law of this state. This does not authorize the administration, withholding, or withdrawal of health care otherwise prohibited by the law of this state. §166.005

Revocation
The DIRECTIVE is valid until it is revoked. You may revoke the DIRECTIVE at any time, even in the final stages of a terminal illness. If you revoke the DIRECTIVE, the revocation is not effective until the attending physician is notified of the revocation. The physician or the physician designee shall record in the patient’s medical record the time and date when the physician received notice of the written revocation and shall enter the word “VOID” on each page of the copy of the DIRECTIVE in the patient’s medical record. §166.042-043 If you change your mind after executing a DIRECTIVE, your expressed desire to receive life-sustaining treatment at all times will supersede the effect of a DIRECTIVE. §166.037

Minors
If a qualified patient is under 18 years of age, any of the following persons may execute a DIRECTIVE on behalf of the patient: (1) the patient’s spouse, if the spouse is an adult; (2) the patient’s parents; or (3) the patient’s legal guardian. §166.035 However, the desire of a qualified patient who is under 18 years of age shall always supersede a DIRECTIVE executed on his or her behalf. §166.037 A form which may be executed on behalf of a minor is provided.  

NOTICE: The Texas Medical Association provides this information with the express understanding that (1) no attorney-client relationship exists, (2) neither TMA nor its attorneys are engaged in providing legal advice, and (3) the information is of a general character. This is not a substitute for the advice of an attorney. While every effort is made to ensure that content is complete, accurate, and timely, TMA cannot guarantee the accuracy and totality of the information contained in this publication and assumes no legal responsibility for loss or damages resulting from the use of this content. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought. Any legal forms are only provided for the use of physicians in consultation with their attorneys.

Permission is granted to reproduce this document. 

 

Directive to Physicians and Family Members

Instructions for completing this document

This is an important legal document known as a “Directive to Physicians” or an “Advance directive.” It is designed to help you communicate your wishes about medical treatment at some time in the future when you are unable to make your wishes known because of illness or injury. These wishes are usually based on personal values. In particular, you may want to consider what burdens or hardships of treatment you would be willing to accept for a particular amount of benefit obtained if you were seriously ill.

You are encouraged to discuss your values and wishes with your family or chosen spokesperson, as well as your physician. Your physician, health care provider, or medical institution may provide you with various resources to assist you in completing your advance directive. The brief definitions listed below may aid you in your discussions and advance planning. Initial the treatment choices that best reflect your personal preferences. Provide a copy of your directive to your physician, usual hospital, and family or spokesperson. Consider a periodic review of this document. By periodic review, you can best ensure that the directive reflects your preferences.

In addition to this Directive to Physicians, Texas law provides for two other types of directives that can be important during a serious illness. These are the Medical Power of Attorney and the Out-of-Hospital Do-Not-Resuscitate Order. You may wish to discuss these with your physician, family, hospital representative, or other advisers. You also may wish to complete a directive related to the donation of organs and tissues. 

Definitions

“Artificially administered nutrition and hydration” means the provision of nutrients or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the gastrointestinal tract.

“Irreversible condition” means a condition, injury, or illness:

(a) That may be treated, but is never cured or eliminated;

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

(c) 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.

Directive to Physicians and Family or Surrogates

 

I, _________________________________________________________________________,

recognize that the best health care is based upon a partnership of trust and communication with my physician. My physician and I will make health care or treatment decisions together as long as I am of sound mind and able to make my wishes known. If there comes a time that I am unable to make medical decisions about myself because of illness or injury, I direct that the following treatment preferences be honored:

 

If, in the judgment of my physician, I am suffering with a terminal condition from which I am expected to die within six months, even with available life-sustaining treatment provided in accordance with prevailing standards of medical care:

 

__ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR

 

__ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE).

 

If, in the judgment of my physician, I am suffering with an irreversible condition so that I cannot care for myself or make decisions for myself and am expected to die without life-sustaining treatment provided in accordance with prevailing standards of care:

 

­­__ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR

__ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE).

 

Additional requests: (After discussion with your physician, you may wish to consider listing particular treatments in this space that you do or do not want in specific circumstances, such as artificially administered nutrition and hydration or intravenous antibiotics, etc. Be sure to state whether you do or do not want the particular treatment).

 

After signing this DIRECTIVE, if my representative or I elect hospice care, I understand and agree that only those treatments needed to keep me comfortable would be provided and I would not be given available life-sustaining treatments.

 

If I do not have a Medical Power of Attorney and I am unable to make my wishes known, I designate the following person(s) to make health care or treatment decisions with my physician compatible with my personal values.

1.____________________________________________________________________________

2.____________________________________________________________________________

                                                          

(If a Medical Power of Attorney has been executed, then an agent already has been named and you should not list additional names in this document).

If the above persons are not available, or if I have not designated a spokesperson, I understand that a spokesperson will be chosen for me following standards specified in the laws of Texas. If, in the judgment of my physician, my death is imminent within minutes to hours, even with the use of all available medical treatment provided within the prevailing standard of care, I acknowledge that all treatments may be withheld or removed except those needed to maintain my comfort. 

I understand that under Texas law this DIRECTIVE has no effect if I have been diagnosed as pregnant. This DIRECTIVE will remain in effect until I revoke it. No other person may do so.

Signed________________________________________________________________________

Date__________________________________________________________________________

City, County and State of Residence________________________________________________

SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES

Two competent witnesses must sign below, acknowledging your signature. The witness designated as “Witness 1” 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. The witness may not be entitled to any part of the estate and may not have a claim against the estate of the patient. The witness may not be the attending physician or an employee of the attending physician. If this witness is an employee of the health care facility in which the patient is being cared for, this witness may not be involved in providing direct patient care to the patient. This witness may not be an officer, director, partner, or business office employee of the health care facility in which the patient is being cared for or of any parent organization of the health care facility.

Witness 1______________________________________________________________________

Witness 2 _____________________________________________________________________

OR

SIGNATURE ACKNOWLEDGED BEFORE NOTARY

State of Texas, County of ____________________.

This DIRECTIVE was acknowledged before me on ____________ (date) by ___________________________ (name of person acknowledging).

 

_________________________________________________________________________________________________________________

NOTARY PUBLIC, State of Texas

 

Notary’s printed name:_________________________ My commission expires:  __________________________________________________

 

 

Permission is granted to reproduce this document. 

 

 

Last Updated On

January 18, 2019