San Antonio Express-News
November 15, 2005

Directive or DNR or Both?

copyright 2005, Paul Premack

A Directive to Physicians, under Texas law, allows a person to give instructions about the utilization of life-sustaining medical procedures. It applies when the Declarant has lost the ability to communicate, and has either been 1) diagnosed with a terminal illness, or 2) diagnosed with an incurable illness, or 3) has had a medical crisis and is expected to die within the next few hours.

The document that JM mailed to me was signed by him on August 5, 2005, and as required by law was witnessed by two persons. It looks official, but there are a two specific flaws that may render it useless.

First, JM has used wording that was legal in 1999 and earlier. Since late 1999, an entirely new law has been in place that calls for an extremely different set of choices than the earlier Directive law. If JM had signed his document more than five years ago, it would be valid and enforceable – but since he relied on the outdated law, his Directive is of dubious legality.

Second, JM fell into a trap set by both the old and new Directive laws. The Directive begins with a clear statement that if you have a terminal illness then you refuse life support. Later in the same document, there is a statement that says, "I understand Texas law allows me to designate another person to make a treatment decision for me…. I designate _____". Those two positions are mutually exclusive.

If you have issued a concrete instruction refusing life support, you cannot at the same time state that a proxy will make that choice for you when the time comes. You’ve got to choose one way or the other, not both.

Anyone who desires a legally valid, enforceable and up-to-date Directive needs to be very careful. These are, after all, issues of life and death. There are lots of incorrect or confusing forms in circulation, so it is wise to get knowledgeable help. This can be from an employee or volunteer at an area agency on aging certified by the Texas Department on Aging as trained to give technical advice, consultation, and document completion assistance. The best help is from an elder law attorney who has studied the issues and helped many others with their planning.

Do you need a separate "do not resuscitate" (DNR) order? One possibility: if you name a proxy, that proxy can sign a DNR for you when that day arrives. But the proxy, as decision maker, also has the power to keep you on life support or to decide you do not need a DNR. You are not making a concrete decision and do not know what your proxy might decide in the future.

The more certain decision is to get a separate DNR order. They are free, and can be downloaded by clicking here (scroll down to "free forms"). A Directive itself is not a DNR. Thus, the steps you should take to be sure your wish are followed are: 1) Create a Directive that does not name a proxy, making your intent to refuse life support very concrete, 2) Create a Medical Power of Attorney that does name a proxy for routine medical concerns, but does not allow the proxy to contradict your Directive, and 3) Create a DNR that refuses resuscitation.