Texas' New Legislation:

Durable Power of Attorney for Health Care

Published in "The Texas Bar Journal"

Vol. 53, No. 8, September 1990, pages 860-863

On June 14, 1989 the Governor of Texas signed into law C.S.H.B. 2098, "An Act relating to a durable power of attorney for health care". ¹ The effective date of the Act was also June 14, 1989 under the emergency clause in its section 19.

History

In the last several years, the need for surrogate medical decision-makers has become increasingly evident. The elderly, who are the largest consumers of medical care², are the fastest growing segment in our population. By the year 2000, projections place the population between the ages of 65 & 74 at nearly 20 million, the population between the ages of 75-84 at nearly 12 million, and the population age 85 and older at nearly 5 million, for a total of 37 million people. In contrast, the total of all these age groups in 1950 was just over 10 million people. ³

These millions of elderly people bear a high risk of incapacity from a wide range of medical causes. A 1982 study ⁴ established that 11.7% of the population age 65 to 74 are in some way unable to manage money, make a phone call, or take medication without assistance. Another study established that 2 to 5 percent of individuals over age 65 have a significant dementia, and that the figure increases to 15 to 20 percent of those over age 80.⁵ Under these conditions, medical care becomes a necessity.

The rising cost of hospitalization and nursing home care has increased the financial risk of a long term illness. Families now provide over 50% of the cost of nursing home care whereas combined government sources cover about 48% of the costs. ⁶

Texas first responded to these demands with the Natural Death Act ⁷ in 1977. The Natural Death Act (in addition to providing for the Directive to Physicians) originally stated in section 3(e):

"The directive may include other directions, including a designation of another person to make a treatment decision in accordance with section 4A of this Act for the declarant if the declarant is comatose, incompetent, or otherwise mentally or physically incapable of communication." ⁸

This provision and common law elements of agency law have been viewed as authority, albeit untested, for delegation of medical decision making authority to an Agent. Without a more clear cut answer, the Texas legal community has spent a decade responding to the need among its clients in the best fashion possible.

Meanwhile, lawmakers in other jurisdictions moved to address the issues surrounding medical consent. Texas joined the ranks with its Durable Power of Attorney for Health Care act among twenty states which have enacted health care agency legislation.

In 1982, Pennsylvania was the first to enact a law to allow delegation of medical decision-making powers in a durable power of attorney⁹. California followed in 1983 with a comprehensive statute with many similarities to the Texas Act¹⁰. In 1985, Colorado followed the Pennsylvania example¹¹, and in 1986 Rhode Island followed the California pattern¹². Texas has drawn on both the California and Rhode Island laws, drawing elements from California's technical requirements and from Rhode Island's mandatory form.

Overview of the Texas Legislation

Passage of the Texas Act has lifted the uncertainty surrounding delegation of health care decision-making authority. It provides for appointment of an Agent to make health care decisions for the principal and requires use of a form contained in the act. The Agent may be anyone except the principal's Health or Residential Care Provider or an employee of the Health or Residential Care Provider, unless related to the principal¹³. An overview of the statute follows.

Hurdles at Time of Execution:

When creating a Health Care Power of Attorney, the appointment of the agent must be made in writing, in the presence of at least two witnesses¹⁴. Similar to the Texas Natural Death Act, the new law disqualifies a long list of persons from acting as witnesses; the following list cannot act as a witness¹⁵:

1. the agent,

2. the Health or Residential Care Providers or their employees,

3. the spouse or any heir of the principal,

4. anyone else who may inherit from the principal, or

5. anyone who may have a claim against the principal's estate¹⁶.

Section 4(c) of the Act requires that the witnesses affirm that the principal appeared to be of sound mind to make a health care decision. This standard, in theory, could be quite difficult since the witnesses are likely to hold no special expertise in the health care field. However, requiring the principal to "appear" to be of sound mind should not exclude the majority of possible principals. Difficulty arises when the possible principal is hospitalized or ill at home; a cautious practitioner should seek a statement from the principal's physician that in his best medical judgment the principal is of sound mind to make a health care decision at the time he is preparing to sign the Power of Attorney.

The Texas Act allows a potential principal who is physically unable to sign the Power of Attorney to have another person sign the principal's name in the principal's presence and at the express direction of the principal.¹⁷ California and Rhode Island do not allow such a procedure; they specifically require the signature of the principal. In addition, California requires notarization; Texas and Rhode Island conclude the Power of Attorney with the signatures of the witnesses.

Section 4(c)(2) contains a further technical requirement: the witnesses must affirm that the principal stated in their presence that he was aware of the nature of the durable power of attorney and that he was signing it voluntarily and free from duress. This requirement is met in the form's witness statement, which recites the proper magic words. However, the cautious practitioner will read the witness statement aloud before execution of the power of attorney to get affirmative confirmation from the Principal that the facts recited are true.

The final hurdle at the time of execution is the lengthy disclosure form that must be read and signed by the principal before execution of the document. A similar form is required by California and Rhode Island; California limits its use to situations when no attorney is involved and Rhode Island (like Texas) makes the disclosure a preamble to the power of attorney.

Delivery of the Document

In addition to proper execution, the statute requires that the Power of Attorney be delivered to the Agent before it becomes effective.¹⁸ There are two possible interpretations of this requirement: 1) that, similar to delivery of a deed, physical delivery of the document is required at or near the time of execution for the document to be a valid transfer of authority, or 2) that the document will sit dormant until it is delivered, and that it will become effective when delivered regardless of the time of delivery.

Rhode Island's mandatory form suggests that "Your agent may need this document immediately in case of an emergency that requires a decision regarding your health care. Either keep this document where it is immediately available to your agent... or give (him) an executed copy..."¹⁹ Perhaps Texas was concerned that the document does no good if the Agent cannot find it, so Texas required delivery. The Rhode Island approach, which allows delivery at any time before use of the document, is the most effective technique for use of the document. Any other interpretation places an artificial barrier to the use of an otherwise valid power of attorney.

When can the Agent act, and in what ways?

After the Power of Attorney is property executed, witnessed, and delivered, the agent can make any medical decision the principal could make for himself, but only after the attending physician certifies in writing that the principal is no longer able to make health care decisions alone. Such "incapacity" is defined in the Act as the inability "to understand and appreciate the nature and consequences of a health care decision, including significant benefits and harms of, and reasonable alternatives to, any proposed health care".²⁰ Until the doctor certifies the principal to be incapacitated, the Power of Attorney sits dormant²¹.

A trap for the unwary physician is the requirement that the principal's incapacity be certified in writing, and that the certification be filed in the principal's medical record.²² Failure to properly document incapacity may give rise to claims against the physician for allowing an "unauthorized" person to make medical decisions on behalf of the patient.

The agent is required to act based on the "substituted judgment" principal, according to his knowledge of the principal's wishes (including religious and moral beliefs).²³ If the agent is not aware of the principal's wishes, he is allowed to make a decision based on his assessment of the principal's "best interest".

The health care provider must follow the Agent's instructions unless they feel the instructions are contrary to the Principal's wishes, the law, or the power of attorney's limiting statement²⁴. The providers are not criminally or civilly liable for the result of a decision of the Agent, nor is the Agent liable if all decisions where undertaken in good faith.²⁵

Important to the Agent is the fact that he is not financially liable for the cost of the health care provided under his direction. In the absence of a Power of Attorney, health care providers will be tempted to collect the medical bill from the person who authorized the care and signed the admission form. Family members, like the children of an elderly person, should know there is a method to avoid direct financial responsibility for such health care costs.²⁶

Limits on the Agent's Powers

Even though the principal has been certified as "incapacitated", the physician is required to inform the principal of a proposed health care decision before implementation of any such decision. The Act requires that a treatment may not be given or withheld if the principal objects regardless of the fact that the Power of Attorney exists and regardless of the principal's lack of capacity.²⁷ Ultimately, then, the principal retains a veto power over the doctor and agent, regardless of the patient's mental state.

Section 2(f) of the act places a further limit on the Agent's power: he may not place the principal into an inpatient mental health facility, may not authorize convulsive or psycho- surgical treatment, may not authorize abortion, and may not withhold "comfort" care.

Similarly, California prohibits the agent from placing the principal into a mental health treatment facility, or authorizing convulsive treatment, psychosurgery, sterilization, or abortion.²⁸ California goes the extra step of defining convulsive treatment and psychosurgery, a step I suspect would be helpful guidance to Texas' Judiciary and Bar.

Challenges: Guardianship, Natural Death Act

If, after execution of the Power of Attorney for Health Care, an application for Guardianship is filed proposing to make the Principal a ward, the proposed Guardian controls all health care decision-making unless the court orders the Agent to continue. On final hearing, the Judge may determine whether to continue or revoke the power of the Agent.

Considering the caution exercised by our Judiciary, it seems that the Agent will be removed in favor of the Guardian in many cases. Guardianship maximizes protection of the Principal with a bond and court supervision. If your client feels strongly, recommend two actions: first, under section 6(b) of the Act, the court must consider the preferences of the principal. Include a provision in the Power of Attorney instructing the court regarding your client's wishes. Second, recommend a Declaration of Guardian²⁹ to your client; with it, he can direct his choice of Guardian (and disqualify anyone from holding the post) thereby covering both angles.

In a conflict between a Natural Death Directive and the Power of Attorney, the one signed later in time has priority. It is undetermined whether the Power of Attorney can act like a "living will"³⁰ to allow termination of life support even though you do not have a terminal condition.

Language in the Act is contradictory: Section 12 states that "A physician who withholds or withdraws life-sustaining procedures from a principal with a terminal condition as required by an agent's directive is not required to comply with the natural death act" (emphasis added). In contrast, the required disclosure form states that the agent may "make decisions about withdrawing or withholding life-sustaining treatment"³¹; it does not warn the principal that there must first be a "terminal condition".

It is recommended that a statement be included in the "limitations" section of the Health Care Power of Attorney removing from the Agent all authority to withhold or withdraw life-sustaining procedures, instead giving preference to any existing Natural Death Directive (unless the directive is found void or its use is delayed beyond a reasonable time).

Conclusion

All clients with Natural Death Directives, living wills, or powers of attorney should be advised of the new law. Its provisions greatly expand the flexibility of providing health care without the need for guardianship.

Endnotes --

1. Tex. H.B. 2098, 71st Leg. (1989); Tex. C.S.H.B. 2098, 71st Leg. (1989). Act of June 14, 1989, ch 491, 1989 Tex. Sess. Law Serv. 1669 (Vernon). Codified as TEX. CIV. STAT. ANN. art. 4590h-1, (Vernon 1990 Cumulative Annual Pocket Parts).

2. R.E. Hales & S.C. Yudofsky, Textbook of Neuropsychiatry 110 (American Psychiatric Press 1988).

3. U.S. Dept of Commerce, Bureau of the Census, Census of Population and Housing (1980).

4. Soldo, B. & Maton, K., Health Status and Service Needs of the Oldest Old: Current Patterns and Future Trends, 63 Milbank Memorial Fund Quarterly/Health and Society 286-319 (Center for Demographic Studies, Duke University, 1982 Long-Term Care Survey, 1985).

5. McHugh, P.R. & Folstein, M.F., Organic mental disorders, 1 Psychiatry 1-21 (1985).

6. Health Care Finance Administration Office of the Actuary, National Health Expenditures 1986-2000, 8 Health Care Financing Review 1-36 (1987).

7. TEX. HEALTH & SAFETY CODE ANN. §672.001 et. seq. Formerly TEX. REV. CIV. STAT. ANN. art. 4590h (Vernon 1989).

8. TEX. REV. CIV. STAT. ANN. art. 4590h § 3(e) (Vernon 1989). This language has been replaced with similar verbiage in the recodification under TEX. HEALTH & SAFETY CODE ANN.

§ 672.003(d).

9. 20 PA. CONS. STAT. § 5602

10. CAL. CIVIL CODE §2430 et.seq.

11. COLO. REV. STAT. § 15-14-501

12. R.I. GEN. LAWS §23-4.10-1, which requires use of a statutory form as set out in the legislation.

13. TEX. REV. CIV. STAT. ANN. art. 4590h-1 §3 (Vernon 1990 Cumulative Annual Pocket Part).

14. Id. § 4(a).

15. Id. § 4(b).

16. By contrast, the California law forbids "a health care provider, an employee of a health care provider, the attorney in fact, the operator of a community care facility, an employee of a community care facility, the operator of a residential care facility for the elderly, or any employee of an operator of a residential care facility for the elderly" from acting as witnesses. It allows for one of the two witnesses (but not both) to be "a relative of the principal by blood, marriage, or adoption... (or) a person who would be entitled to any portion of the estate of the principal... under any will or codicil". Texas picked up the California act's exception for relatives of the principal who are employees of a health care provider: they may act as a witness. CAL. CIV. CODE §2432 and §2432.5

17. Id. §4(d).

18. Id. § 2(g).

19. R.I. GEN. LAWS §23-4.10-2.

20. TEX. REV. CIV. STAT. ANN. art. 4590h-1, §1(4) (Vernon 1990 Cumulative Annual Pocket Parts).

21. The requirement that the document sits dormant until the doctor certifies that the Principal has lost capacity is another argument favoring "delivery" of the document at any time before incapacity arises. The power of attorney cannot be used before onset of incapacity, so possession of it prior to incapacity does not empower the Agent in any way. Delivery arguably should be allowed at or before the time the Agent needs to exercise his or her powers.

22. Id. §2(b).

23. Id. §2(e)(1).

24. Id. §8

25. Id. §17

26. Id. §11

27. Id. §2(c).

28. CAL. CIV. CODE §2435

29. See TX. PROB. CODE ANN. §118A

30. Please note that there is a substantive difference between a "living will" and a "directive to physicians" under the Texas Natural Death Act. A living will says, in effect, do not use "heroic measures to preserve my life if there is no reasonable chance of my recovery". A directive to physicians requires compliance with the Natural Death Act, i.e., that a terminal illness be certified by two physicians and that death be very near.

Since the landmark right to die decision in CRUZAN, NANCY, ET AL., PETITIONERS V. DIR, MISSOURI DEPT OF HEALTH, No. 88-1503, (Supreme Court of the United States, decided June 25, 1990) it is vital that all proper formalities be followed when a patient desires cessation of life support. Never rely on a living will; always opt for a formal Natural Death Directive.

31. TEX. REV. CIV. STAT. ANN. art. 4590h-1, §15 (Vernon 1990 Cumulative Annual Pocket Parts).