Can 90-year-old father choose death with dignity?

This column first appeared in the San Antonio Express News on October 12, 2015.

Dear Mr. Premack: My father and I have been discussing his illness. He has been diagnosed with cancer; the progress will be slow but unstoppable. He is 90, does not want to be put on artificial life support, and wishes that he could (when the time gets nearer) end his own life in a physician assisted suicide. It is possible and legal in Texas for his wishes to be carried out? – RS

In America, an adult person of sound mind has the right to determine their own medical care. A competent patient can accept or refuse medical care, so long as the patient has capacity to give (or withhold) informed consent.

Under Texas law, a patient can: a) refuse artificial life support, b) refuse a medical treatment that could, in the doctor’s opinion, be beneficial to the patient, and c) forgo treatments so that death may occur naturally. But a patient may not, under Texas law, take any action that would actively end the patient’s life. Texas does not allow euthanasia or assisted suicide.

None of the states has legalized euthanasia, but several have legalized assisted suicide. Oregon, Washington and Vermont have death with dignity statutes, and California’s legislature recently passed a right-to-die law (the bill was signed into law by the Governor on October 5). Generally, these laws allow a competent patient who has received a terminal diagnosis to request lethal doses of medication from a physician. Use of these laws has been modest. For instance, in Washington last year there were 176 people to whom doses were dispensed, and 126 of those people used the medication to end their lives. Of them, 86% were suffering from terminal cancer or ALS.

Conversely, many states including Texas criminalize assisted suicide. The Texas Penal Code 22.08 states that a person commits a misdemeanor by aiding or attempting to aid another person to commit or attempt suicide, if the aider intends to promote a suicide or actually assists in a suicide. If the aider’s actions result in death by suicide or even serious bodily injury, the crime is elevated to a state jail felony.

Aside from establishing residency in one of those other states, what options are available to your father? Texas law allows three types of advance directives so that the patient’s wishes regarding medical treatment can be honored, even after the patient loses capacity. They are:

>> An out-of-hospital Do Not Resuscitate Order, which allows a patient to refuse resuscitation if the patient should die naturally. With it, care providers are banned from using medical techniques that could restore a heartbeat.

>> A Directive to Physicians, which instructs the care providers to disconnect or withhold artificial life support when the patient is terminally ill or has an irreversible condition. With it, the patient is allowed to die in a more natural manner, often with hospice support services.

>> A Medical Power of Attorney, which appoints a surrogate decision maker for more routine health care issues should the patient lose capacity.

All of these should be complemented with HIPAA authorization language. HIPAA is a federal law meant to protect patient privacy, but which can shut down communication between the doctor and surrogate decision maker unless the patient has consented to the release of private health information. None of the state’s suggested forms accommodate HIPAA, so you should always have an experienced Elder Law Attorney prepare the advance directives for you.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via http://www.TexasEstateandProbate.com or www.Premack.com.

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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