This column first appeared in the San Antonio Express News and other Hearst Newspapers on October 21, 2019.
Dear Mr. Premack: My wife and I have current estate planning documents including a Directive to Physicians and a Medical Power of Attorney. We are each other's primary agents. In May of this year, my wife who had been ill but managing, took a drastic turn for the worse. Her history was that she would bounce back from previous turns. Although in her documents she specifically says not to allow artificial feeding, I thought she was going to get better, so I allowed the artificial feeding tube to be used. I brought her home from the hospital and hired caregivers to help me help her. However, it is four months later, and I can see that my wife is not going to get better this time. She has no quality of life. The care she is receiving is keeping her alive and the caregivers are using their personal beliefs to pressure me not to remove the feeding tube. My question is: Even though I allowed the feeding tube to be administered, do I have authority to tell the doctor to remove it? – E G
Both Federal and Texas law allow each competent adult individual to make their own medical choices. A person can accept medical care or can decline medical care, even if the decision to decline the care may be against the doctor’s advice or may eventually result in natural death. Court cases stretching back as far as 1914, in Schloendorff v. Society of New York Hospital, have upheld the principal that (as stated by Judge Cardozo), “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”
Questions arise when an adult is no longer competent. When a human being of adult years is no longer of sound mind, the above principal still stands but must be exercised by a legal representative who is of sound mind. If the patient has not exercised their legal right under state law to have proper legal documents which appoint a representative, then state law provides two default solutions: 1) if the patient is in a facility like a hospital or nursing home, state law selects a representative like the spouse, or 2) a court can appoint a representative through the Guardianship process.
A competent adult should avoid the default provisions of state law, because there is a better solution: the competent adult signs legal advance directives like your wife’s Directive to Physicians and her Medical Power of Attorney. The Directive allows a person to declare that they refuse artificial life support in the event of terminal or incurable illness. The Medical Power of Attorney allows a person to select an Agent to make surrogate medical decisions should the person lose capacity to make their own decisions, and that loss of capacity is documented by their attending physician.
In your specific situation, then, the first question is: can your wife still make her own medical decisions? Does she, in the doctor’s opinion, have the capacity to understand the risks and benefits of accepting or declining a particular medical treatment? If she does have capacity, she can communicate to the doctor her desire to have the feeding tube removed. After discussion to be sure she is clear on the consequences, the doctor should order that her instructions be followed. She could then be enrolled for palliative hospice care until her death.
If she does not have capacity, then you must act as her advocate and her Agent. Talk to the doctor about her Directive to Physicians. If the doctor agrees her condition is terminal, and the feeding tube is just prolonging the dying process, then you must advocate for removal of the life support as she instructed in her Directive. If the doctor feels her condition is not yet terminal then you, as Agent under her Medical Power of Attorney, can instruct the doctor that your wife now withdraws consent for the feeding tube. After consultation, the doctor should order the feeding tube removed and could place her under palliative hospice care.
The caregivers you hired are using their personal beliefs to pressure you to proceed as they think best, not as you and your wife think is best. You may want to consider talking to the owner of their agency or selecting a different home health agency altogether. Those caregivers are overreaching, and you have the legal power to replace them.
Proper legal advance directives are the key to controlling your medical destiny. Texas law still outlaws death with dignity (which nine other states allow) but Texas lets people determine the course of their own medical treatment, either personally while competent or through the legally appointed Agent if not competent. Visit your qualified estate planning or elder law attorney now to get these documents in place if you do not already have them.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.