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In the realm of estate planning, Advance Medical Directives play a crucial role in ensuring that your healthcare wishes are respected and followed when you are unable to communicate them yourself.

The Role of Advance Medical Directives in Healthcare Decisions

A Medical Power of Attorney is probably included in every estate planning package within the State of Texas. You might want a separate HIPAA Medical Information Release so that you can name people whom you would not want to speak on your behalf but who can be your eyes and ears – including an elder law attorney who may need to appeal a Medicare nonpayment notice.

An Advance Directive to Physicians and Surrogates is commonly included in an estate planning package. But a nationwide study recently published in the Journal of the American Medical Association found that this document is irrelevant to quality of care at the end of life. For this reason, in addition to a “Living Will,” you might want to consult “A Patient’s Guide to Serious Illness Conversations” and similar pamphlets. The study found that better care at the end of life occurs when there have been frequent family conversations. If you have ever been in a hospital when someone is seriously ill, you have observed that, whatever Medical Power of Attorney or Advance Directive to Physicians and Surrogates may exist, prevailing practice is for a social worker and treating physicians to gather all the family members for a discussion or, more likely, a series of discussions.

Additional Legal Documents for Comprehensive Planning

You might also consider signing a Declaration of Guardian in Case of Need or Later Incapacity. With a Texas Medical Power of Attorney and an expanded, properly drafted Durable Power of Attorney, there are few circumstances in which the client may need a guardian. You may need a guardian of the person if you refuse necessary medical treatment or a move to an assisted living or skilled nursing facility. You may need a guardian of the estate if you are profligate in your spending or gifting or to cut off the access of a thieving agent under your Durable Power of Attorney.

The most emotionally challenging document may be a Declaration for Mental Health Treatment. If you are among the 39% of us who someday needs nursing home care, you may also be among the one-third of nursing home residents who, in a six-month period, becomes temporarily deranged, deluded or demented due to a medication error. A Medical Power of Attorney does not authorize the agent to voice the principal’s wishes with regard to mental health. With a Declaration for Mental Health Treatment, you can make various choices in advance and ask that your regular physician and family members be contacted and delirium ruled out before anything is done.

Finally, you may want an Appointment for Disposition of Remains to determine in advance what should be done and who should do it. Disagreements among family members can result in the estate paying for literally months of morgue preservation of the corpse in addition to adding anger to grief and separating family members when they most need one another’s support.


Elder law attorney, Terry Garrett, CELA, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

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