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4600 Types of Legal Documents an APS Specialist May Encounter

APS-IH / February 2009

In the course of conducting investigations and providing protective services, an APS specialist may encounter numerous types of legal documents that provide legal protection for the client or explain their wishes in the event of a medical emergency.

An APS specialist must:

  •   be familiar with different kinds of legal documents; and

  •   refrain from providing legal advice when discussing any of these documents with a client.

4610 Financial Documents

APS-IH / February 2009

Durable Power of Attorney (DPOA): This is a written instrument authorizing one person to take actions described in the document as attorney or agent of another, who is the grantor of the authorization. A durable power of attorney authorizes the agent to conduct business beginning on a stated date or the date that the DPOA is signed. The DPOA may terminate on a date stated in the document, or if no date is stated, when revoked by the grantor. All powers of attorney are terminated when the grantor dies.

Trust: A trust is a legal document used for planning the management of a person’s estate. A person or entity is named a trustee. Depending on the terms of the trust, the trustee may take actions concerning the estate.

Representative Payee: The U.S. Social Security Administration (SSA), is authorized by law to appoint another person to receive funds on behalf of a beneficiary who is unable to administer his or her own finances. SSA determines when to appoint a representative payee for a client who receives Social Security benefits.

4620 Health-Care Directives

APS-IH / February 2009

There are several alternatives available in Texas that allow an individual to:

  •   give advance instruction to physicians regarding the use of life support in the event of terminal illness; or

  •   designate an agent to make health-care decisions on his or her behalf if he or she becomes incapacitated.

These alternatives include:

  •   directive to physicians (also known as a  living will); and

  ·   medical power of attorney for health care.

4621 Directive to Physicians (Living Will)

APS-IH / February 2009

Health and Safety Code Chapter 166 provides that a person may issue a directive to physicians. This is a legal document in which a person, referred to as a declarant, instructs a physician regarding his or her wishes related to:

  •   withholding or withdrawing life-sustaining procedures in the event of terminal illness; or

  •   designating an individual to make this decision in the event the declarant becomes comatose, incompetent, or otherwise mentally or physically incapable of communication.

Any adult individual who has mental capacity may execute a directive to physicians either verbally or in writing. An example of the form is provided in Section 166.033 of the Health and Safety Code.

For additional information on Directive to Physicians see Appendix I: Health Care Directives.

4622 Medical Power of Attorney

APS-IH / February 2009

A medical power of attorney (MPOA) allows an individual, referred to as a principal, to designate an agent to make health-care decisions on his or her behalf in the event he or she becomes comatose or incapacitated. The principal may choose to:

  •   limit the health-care decisions that the agent can make; or

  •   give the agent full authority to make all health-care decisions and designate an alternate agent if the designated agent is unable or unwilling to act.

Any adult who has not been adjudicated as incapacitated may execute a medical POA by signing the document in the presence of two witnesses.

See Appendix I: Health Care Directives for additional information on medical power of attorney.

4630 Surrogate Decisions in Hospitals or Nursing Homes

APS-IH / June 2009

If a person has not issued a directive to physicians or a medical power of attorney, the Texas Health and Safety Code, §313.004 allows for a surrogate to consent to medical treatment on behalf of an adult patient in a hospital or nursing home, if the patient is:

  •   comatose;

  ·  incapacitated based on reasonable medical judgment; or

  •   otherwise mentally or physically incapable of communication.

Persons named in the statute who are able to consent to medical treatment on behalf of the patient include, in order of priority:

1.   the patient's spouse;

2.   an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as sole decision-maker;

3.   a majority of the patient's reasonably available adult children;

4.   the patient's parents; or

5.   the individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patient's nearest living relative, or a member of the clergy.

Surrogate decision-makers cannot authorize:

  •   voluntary in-patient mental health services;

  •   electro-convulsive treatment; or

  •   the appointment of another surrogate decision-maker.

See Health and Safety Code §313.004.

Decisions to Withhold / Withdraw Life-Sustaining Treatment

If the patient lacks a legal guardian or an agent under a medical power of attorney, the attending physician and the surrogate decision-maker may make a treatment decision that includes withholding or withdrawing life-sustaining treatment.

The person responsible for medical treatment decisions must base the decisions on the desires of the patient, if known.

If the patient has no other surrogate decision-maker, the attending physician, with agreement from a second physician who is not involved in the case, can decide to withdraw a patient from life-sustaining treatment.

See Texas Health and Safety Code §166.039.

The court that has probate jurisdiction resolves any disputes regarding the rights of a party to act as a surrogate decision-maker. See Texas Health and Safety Code §313.004.

See also 1380 Need for Consent to Medical Treatment Allegations.

4640 Surrogate Decisions in Licensed ICF-IID Facilities

APS-IH / June 2009

The Texas Health and Safety Code §597.021 and §597.041 allows for a surrogate or a surrogate consent committee to make a treatment decision about major medical and dental treatment, psychoactive medication, or a highly restrictive procedure of an adult client of an ICF-IID (intensive care facility for individuals with intellectual disabilities), if the client:

  •   is not capable of making a decision on treatment; and

  •   is without a legal guardian.

Below is a list of adults who may give consent for medical or dental treatment. The list is in order of descending preference. The person who gives consent must have the capacity to make a decision and be willing to do so on behalf of the client. The person may be an actively involved:

  •   spouse;

  •   adult child who has the waiver and consent of all other actively involved adult children of the client to act as the sole decision-maker;

  •   parent or stepparent;

  •   adult sibling who has the waiver and consent of all other actively involved adult siblings of the client to act as the sole decision-maker.

If a client does not have a legal guardian or surrogate decision-maker available, the ICF-IID facility must file an application for a treatment decision with DADS. On receipt of an application for a treatment decision, DADS appoints a surrogate consent committee of three to five members.

The list of qualified individuals from which committee members are drawn include:

  •   health care professionals licensed or registered in this state who have specialized training in medicine, psychopharmacology, nursing, or psychology;

  •   persons with intellectual disabilities or parents, siblings, spouses, or children of a person with intellectual disabilities;

  •   attorneys licensed in this state who have knowledge of legal issues of concern to persons with intellectual disabilities or to the families of persons with intellectual disabilities;

  •   members of private organizations that advocate on behalf of persons with mental retardation; and

  •   persons with demonstrated expertise or interest in the care and treatment of persons with intellectual disabilities.

Any dispute as to the right of a party to act as a surrogate decision-maker may be resolved only by the court having probate jurisdiction.

See Texas Health and Safety Code §597.043(c).

DADS and the ICF-IID facility are responsible for obtaining the necessary consent for any medical or dental treatments of ICF-IID clients. If an intake is received in which DFPS is being asked to seek guardianship of a client in an ICF-IID facility to make these decisions, the SWI specialist refers the intake to DADS.

See also 1380 Need for Consent to Medical Treatment Allegations.

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