The most basic reason for estate planning is to ensure that an individual’s wishes are carried out during incapacity and after their death. To do this, there are various legal documents and varying strategies that can be used, depending on the individual’s wishes, financial situation, and circumstances. One important aspect of estate planning involves legally defining how your healthcare will be managed should you become incapable of making these important decisions for yourself. In Texas, advance directives, also called healthcare directives, are the legal documents that you can create to take control of your own important medical decisions, so someone else doesn’t eventually make the decisions for you. Once established, advance directives can be modified, if your wishes change, but they must be prepared and signed while you are still of sound mind and capable of making your own healthcare decisions. For more information about advance directives in Texas estate planning, continue reading this article by estate planning attorney Steven C. Holman.
Advance Directives: The Basics
Advance directives are legal documents that outline a person’s preferences for the type of end-of-life and/or medical care they would receive in the event that they become incapacitated and cannot communicate their intentions directly. The documents address various aspects of medical care and act as instructions for family members, surrogates, and healthcare professionals.The most prevalent advance directives in Texas estate planning include the following: Medical Power Of Attorney, Directive To Physicians, and Do Not Resuscitate Orders.
Medical Power Of Attorney
A medical power of attorney is a legal document created by you in which you name a trusted individual as your agent, who can make your medical decisions if you become unable to make them on your own. By planning ahead and preparing your medical power of attorney while you are capable of making important decisions for yourself, you can choose a specific and trusted family member or friend to make health care decisions for you if you become incapable of making decisions for yourself.
In Texas, your medical power of attorney becomes effective as soon as you sign the document and deliver it to your agent. However, the agent can only make health-related decisions if your doctor certifies that you cannot make them on your own. The decision-making authority goes to your agent as soon as you are determined incompetent, but if you later gain competency, then the agent is no longer able to make medical decisions on your behalf. Your medical power of attorney can be revoked, or canceled, if your wishes change.
By selecting now who will act as your agent should you experience an unexpected health crisis, you can set your mind at ease. Health issues and medical emergencies can happen anytime, so having your medical power of attorney in place ensures that should a health-related problem arise, the focus will be on family, not on filling out documents.
Directive To Physicians
A directive to physicians is another term for a living will. It is a document that gives you the opportunity to state ahead of time what kind of treatment and care you wish to receive if diagnosed with a terminal or irreversible condition.
Terminal Conditions – Under Texas Law, terminal conditions are defined as incurable medical conditions 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. Late-stage cancer is one example of a terminal condition.
Irreversible Conditions – According to Texas law, an irreversible condition is a condition, injury, or illness that may be treated, but is never cured or eliminated, that leaves a person unable to care for or make decisions for the person’s own self, and that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal. An example of an irreversible condition is a traumatic brain injury resulting from a vehicular accident.
A directive to physicians prepared by an experienced estate planning attorney provides options pertaining to both types of conditions, or an overlap of the two, so that you can direct your medical providers with your instructions on life-sustaining treatments, pain management, medications, and more. This document can also include special provisions, such as directions regarding specific medication types or a special pain management regimen you want your doctors to use in the case of a terminal and/or irreversible condition.
This document can work alongside your medical power of attorney, removing any end-of-life decision-making burden from your named agent. In doing so, you can ease the mind of your loved one during an already stressful time.
Do Not Resuscitate (DNR) Directives
There are two kinds of DNR directives to know about: in-hospital and out-of-hospital. Both types are requests by a patient not to be resuscitated if their heart or lungs cease to function.
Your consent is required for both types of DNR orders, which form part of your medical file. In-Hospital DNR orders are sometimes referred to as “no code” orders. This order tells your hospital staff not to resuscitate you in the case of cardiopulmonary failure. An out-of-hospital DNR order instructs emergency medical personnel, hospital emergency room staff, nursing home staff, and other health care professionals not to resuscitate you.
The decision to include or exclude DNR directives from your estate plan should be discussed with your loved ones, your physician, and an estate planning attorney who can help you determine if they are right for you.
Other Health-Related Directives
In addition to the advance directives mentioned previously, there are additional health-related directives that could work alongside your advance directives in Texas estate planning. These include the following:
HIPAA Authorization – A HIPAA authorization allows named individuals to access your medical records; they are otherwise considered sensitive information and kept confidential. A HIPAA authorization form doesn’t give anyone else the right to make medical decisions for you, but it does give named individuals some essential access to this information.
Disposition Of Remains Order – Creating a disposition of remains document allows you to clearly state who may dispose of your remains in the event of death. This document can also state burial or cremation preferences to be followed by the agent named in the document. A disposition of remains document must be signed by both parties to ensure that the agent named accepts this end-of-life responsibility.
Declaration Of Guardian – A declaration of guardian provides a general kind of safety net in case a court ever has to appoint a guardian on your behalf. It is meant to help the judge decide who should—and who should not—be appointed to make decisions for you. If you have preferences about who becomes your guardian in the event that you lose the ability to act on your own, this is an important document to have in your estate plan.
Find The Right Attorney
Find an experienced estate planning and elder law attorney who can provide valuable advice and help you prepare any and all necessary documents. When you hire an elder care or estate planning attorney, look for someone who focuses on empathy, understanding, and diligence. At Holman Law, we are dedicated to making sure that our clients are comfortable with the legal process of creating advance directives as well as fully informed and prepared for every contingency.
Holman Law LLP is an estate planning law firm managed by Attorney Steven C. Holman. The firm is located in Dallas, Texas and can be reached by phone at (972) 474-7828 or through their website. If you would like to discuss advance directives or any other aspect of estate planning, please reach out to our office.