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Sep 15, 2017

Legislature Enacts New Law for Do-Not-Resuscitate Orders and Updates Law for Medical and Durable Powers of Attorney

By: Michelle Robberson

The 85th Legislature enacted new laws for in-hospital do-not-resuscitate orders (“DNR”) and modified existing laws regarding medical and durable powers of attorney (“POA”).  These laws take effect on April 1, 2018 (DNR) and September 1, 2017 (POAs). 

New in-hospital DNR law.  A DNR order is a medical directive that instructs medical professionals not to perform CPR and other life-sustaining procedures if the patient suffers cardiac/respiratory arrest.  Texas law currently is silent on the requirements for authorization, execution, and revocation of an in-hospital DNR order. 

The new law (Senate Bill 11) addresses only in-hospital DNR orders; it does not apply to an out-of-hospital DNR order as defined in the Advance Directives Act, sections 166.001-166.166 of the Texas Health & Safety Code.  The new applies to DNR orders used in a hospital, assisted living facility, or hospice setting.  The new law appears in sections 166.201-166.209 of the Health & Safety Code.

In summary, the new law requires a DNR order to be issued by the patient’s attending physician; dated; issued in compliance with certain treatment decisions or advance directives; not contrary to the patient’s directions if the patient was competent at the time the patient conveyed the directions, and, in the reasonable medical judgment of the physician, the patient’s death is imminent and the DNR order is medically appropriate.  Also, the DNR order must state it takes effect at the time it is issued, provided it is placed in the patient’s medical record as soon as possible.  If the DNR order conflicts with a treatment decision (H&S 166.002(7)) or advance directive (H&S 166.002(1)), the one dated and executed/issued later in time controls.

The new law requires a health care provider to inform the patient of the DNR order’s issuance before placing it in the medical record, or, if the patient is incompetent, to make a reasonably diligent effort to notify a “certain person” of the order’s issuance.  A “certain person” includes an agent under a medical power of attorney, a legal guardian, or, in order, the patient’s spouse, adult children, parents, or nearest living relative.  Further, the new law includes requirements for revoking a DNR order and explanations required when a physician refuses to issue a DNR order after being requested to do so. 

The statute limits liability for health care providers who follow a DNR order and for failing to follow one that they do not know about (including no civil or criminal liability and no disciplinary action by any licensing authority).  Finally, the new law provides criminal penalties (Class A misdemeanor) for a health care provider’s violation of the subchapter, including intentionally concealing, canceling, or falsifying a DNR order, and intentionally concealing or withholding personal knowledge of an existing DNR order.  You can access the new law here.

Changes to medical POA law.  H.B. 995 clarifies that an agent’s authority under a medical power of attorney is revoked if the agent’s marriage to the principal is dissolved, annulled, or declared void, unless the document provides otherwise.  The Legislature made revisions to the form of the medical POA to reflect the clarification.  The Legislature also made some other, non-substantive changes to the form contained in the statute (H&S 166.164).  You can access the new law, including the new form, here.

Changes to guardianship law.  Senate Bill 39 is an omnibus bill that covers a lot of territory.  A significant portion of the law (a) addresses when appointment of a permanent guardian or temporary guardian for a ward revokes or suspends a durable power of attorney executed by the ward, and (b) sets out in a new section the procedures for petitioning for removal of an attorney-in-fact or agent under a durable power of attorney and appointing a substitute. 

The law also contains many changes to the section covering supported decision-making agreements (“SDMAs”).  An SDMA is an agreement between a person (“supporter”) and an adult with a disability, which effectuates “a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions, including decisions related to where the adult wants to live, the services, supports, and medical care the adult wants to receive, whom the adult wants to live with, and where the adult wants to work, without impeding the self-determination of the adult.”  (Estates Code 1357.002).  Most notably, the new law adds that the supporter owes to the adult with a disability certain fiduciary duties (duty of good faith, duty to act within terms of SDMA, duty to act loyally and without self-interest, and duty to avoid conflicts of interest). 

Another change is to allow a probate court to remove a personal representative, independent executor, or guardian on the court’s own motion, after notice, for failing to file certain reports.

The Legislature amended the form for a statutory durable power of attorney (Estates Code 752.051) and the form for an SDMA (Estates Code 1357.056) so that they are consistent with the new law.  You can access the new law here, including the new POA form and the new SDMA form.