Dear Mr. Premack: My mother is hospitalized with a serious condition, and I am named as the decision maker in her medical power of attorney. Her doctor wants to discharge her to hospice, and says that she has just a few months to live. I am not sure whether to insist that she get moved to a skilled care nursing home (my sister is pushing for life support or anything we can do to prolong mom’s life). Mom’s living will says she does not want “life sustaining treatments”. What are my options as her decision maker? – B.L.
The focus should revolve around 1) following your mother’s stated wishes, and 2) maintaining her quality of life during the time she has left. You and your family and your mother’s doctors need to remember that all of us will eventually die. No one has yet escaped, though some people bargain, fight, and fantasize about alternatives.
Under Texas law, any adult of sound mind is allowed to make their own medical decisions. If your mother is still mentally sound, the doctor needs to be discussing these issues with her. Her family needs to be listening to her and helping her get the level of care she desires. She has an absolute legal right to refuse medical treatment, even if the result of that refusal will be her own death by natural causes. Conversely, your mother has the absolute legal right to insist on medical treatments that the family might wish she would forgo. While making her decisions, she should consider the costs and benefits of any proposed medical treatment. Generally, costs of skilled nursing care must be paid out of pocket while costs of hospice will be covered by Medicare.
Texans also have the legal right to make advance medical directives – like the Medical Power of Attorney and Directive to Physicians — so that if a person becomes incapacitated the treatment decisions that person selected in advance will be followed. Your letter says that your mother already has both of those documents (although “living will” is an outdated name for a Directive to Physicians).
According to Texas law, her Directive expresses three instructions that are binding on you, your family and her doctors. To paraphrase those instructions: 1) If I am diagnosed with a terminal condition I want you to keep me comfortable and free of pain, but do not try to prolong the process of my death by putting me on artificial life support; 2) If I have a condition where life support would keep me alive but I will be comatose and never recover, then I do not want life support; 3) If I have a medical crisis and my death is imminent, keep me comfortable and let me die naturally. This may be why her doctor seeks to discharge her to hospice, where they will honor these instructions and care for her as she dies naturally.
Her Medical Power of Attorney appoints a surrogate decision maker (you) to act on her behalf if her doctor certifies that she has lost the ability to understand the risks and benefits of a proposed medical treatment. However, this does not authorize you to contradict her Directive. Rather, you are bound to follow instructions that she has left, so that the course of her treatment proceeds as she wanted.
The next steps should be an effort to get the entire family on the same page. If your mother is still competent, call a family meeting with your mother and the hospital social worker present. Everyone must agree that the goal is to hear your mother’s wishes and to bolster the quality of her remaining time. If your mother is no longer competent (per the doctor’s medical judgment) then you need to be her advocate. She has expressed her instructions in her Directive, and you need to help her now when she can no longer help herself. Again, a meeting with the family and the social worker is a good start. If your sister still pushes for life support which your mother has rejected, then you need to speak with your mother’s elder law attorney to assist in defending your mother’s last wishes.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, September 2, 2013