It happens. The unexpected event that shifts your plans for the day, the week and even possibly months, occurs in an instant. Then the questions come: Who makes decisions? Are there legal documents directing the decision making? What would Mom/Dad want?

Today’s topic for our elder law discussion is what to do when a loved one enters the hospital, what papers might be needed, and who has the authority to make end of life decisions.

The first document that will be asked for is the Medical Power of Attorney. Has a health care agent been appointed to make medical decisions when the patient can no longer communicate those decisions?

The Medical Power of Attorney has no legal effect as long as the patient can communicate. It is not based on mental capacity. As long as someone can communicate, the MPA has no power. Under the law it works under the principal/agent theory. You, as the principal, appoint someone as your agent to make medical decisions on your behalf when you are not able to make the decisions for yourself. When that happens, your health care agent, appointed under the Medical Power of Attorney, has the right to make decisions on your behalf.

Who should you choose to be your health care agent? Pick someone not only that you trust, but who would not substitute their judgment for yours. You have to trust that the agent you appoint could see to it that your wishes would be reflected in their decision making.

The health care agent can make every medical decision for you with one exception: they do NOT have the right to make the end of life decision on your behalf. Be clear in this understanding, the only person who has the decision-making authority is the patient.

The second type of document needed for health care decision making is the Advanced Directives. There are varying Advanced Directives and Do Not Resuscitate Orders (DNRs) in the state of Texas. Texas law provides three directive forms: Directive to Physicians and Family or Surrogates (what people may refer to as a Living Will), Out-of-Hospital Do-Not-Resuscitate (DNR) Order and Mental Health Treatment Declaration.

The Out-of-Hospital Do-Not-Resuscitate (DNR) Order is a statutory form that must be signed by a physician to be effective. The Mental Health Treatment Declaration is only to be used when mental health services are needed for a patient.

The Directive to Physicians and Family or Surrogates is used in the hospital when a patient is on a respirator, typically in a CCU or ICU setting, the patient has been deemed by a physician to be at the end of life as a result of a terminal or irreversible condition such as Alzheimer’s, and then the question becomes: How do you want to die? Would you like to remain on a respirator, life-sustaining treatment, or would you prefer to be kept comfortable with palliative care?

You, as the patient, select your choice on the Directive form. The health care agent does not make the decision for the patient. Their sole role at that time is to see to it that the Advanced Directive is acknowledged and followed.

What if I change my mind about my agent or end of life decisions? These documents can be changed orally. Once you verbally inform your nurse or doctor about any changes wanted on the Advanced Directive or you need to add or remove someone as your health care agent, your changes are immediate. They will also typically be charted and then will be followed.

The most important rule in dealing with these decisions is to have the conversation before it’s needed. Sit down at a family gathering, pass out the wine if needed, and talk about it. Assumptions at a time of crisis are dangerous and can be harmful to the family. When I sat down with mine, certain decisions surprised me. But it’s not my decision; it’s a very personal decision as to how a life should end. Unfortunately, none of us get out of this alive, but when papers are in place and wishes have been discussed, it’s good to know that we can go out on our own terms.

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