This column first appeared in the San Antonio Express News and other Hearst newspapers on March 10, 2020.
Dear Mr. Premack: I want to fill out a Physicians Directive for my mother, who is 80 and has Alzheimers. She is unable to make decisions. I am Agent in her medical POA. I know her wishes regarding end of life care and I need to sign a Physician Directive for her. How do I sign it? I remember when closing in her house I had to sign my name and then use some verbiage like “for ‘mother’s name’ as attorney-in-fact” or something like that. Please advise. – H.T.
There are two basic types of power of attorney – one for financial matters, and one for medical matters. The financial power of attorney is authorized under the Texas Estates Code. To use it for your mother now that she is unable to make decisions due to Alzheimer’s, the financial power of attorney must be “durable”. Texas law forces financial powers of attorney to lose validity upon the principal’s incapacity unless the power of attorney states that it does not terminate upon your mother’s disability.
Your memory of selling your mother’s house would have been an exercise of your authority under her Durable Power of Attorney for financial matters. Good for you, too, that you signed the closing documents properly. An Agent must always sign the name of the principal (never sign your own name) and then must indicate the representative capacity. If your mom is “Sue Smith” and you are “Tom Smith” you would sign Sue Smith and underneath you would print “by Tom Smith, Agent” or “by Tom Smith, Attorney-in-fact”.
But the Durable Power of Attorney does not give you the power to sign a Directive to Physicians for your mother, nor does the fact that you are also Agent under her Medical Power of Attorney. If your mother did not sign a Directive to Physicians for herself, now that she is incapacitated it is too late to actually "sign a Directive for her" even if you are her Agent.
Instead, the Texas Advance Directives Act provides that as Agent under the Medical Power of Attorney, you can decide on life support issues for her when the moment arrives. The statute says, "If an adult qualified patient has not executed … a directive and is incompetent … the attending physician and the patient's legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient."
Are you sure that your mother did not sign her own Directive at the same time she signed her Medical Power of Attorney? There are statutory forms available, but they are risky and are legally inadequate. They fail to account for the federal HIPAA confidentiality statute. They fail to fully identify the patient. They present several options that may be difficult to comprehend without trained advice. And they must be completed and signed “in advance” – that is, before the signer becomes a patient who has lost the ability to make medical decisions.
The Texas Advance Directives Act authorizes three kinds of advance directives. The first two are the Medical POA and the Directive to Physicians. The third is a Do Not Resuscitate (DNR) authorization. The DNR is distinguished by the place where it is applied: there is one for use In-Hospital, and another for Out-of-Hospital situations. The Out-of-Hospital (OOH) DNR requires the patient to sign in advance along with the patient’s doctor. If the patient fails to make an OOH-DNR the law allows it to be signed by the Guardian, Agent under Medical POA, or next of kin.
It is great that your mother had the foresight to sign both a financial Durable POA and a Medical POA. It is too late to sign a Directive to Physicians, but you can still act to withhold or withdraw life support as her Agent under the Medical POA. It is not too late for you to sign an OOH-DNR for her and, if she goes to the hospital, it is not too late for you authorize an In-Hospital DNR.
Don’t rely on self-help from the internet. Everyone should consult a qualified Elder Law Attorney for counsel on Advance Directives, which are an important part of (but not your entire) comprehensive estate plan.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues in Texas and Washington State. View past legal columns or submit free questions on those legal issues via www.Premack.com.