Default Medical Surrogacy Laws are not a Cure
State law decides for you, by default, who will make your medical decisions if you are incapacitated. These laws are a band-aid, not a cure. You should always opt to select your own representatives using Advance Medical Directives.
The State's ChoicesMost state legislatures have adopted a Default Surrogate Consent Statute to control who can provide informed consent for an incapacitated adult.
Default Surrogate Consent Statutes (DSCS) serve two purposes. First, the DSCS facilitates rapid access to informed consent. Second, the DSCS alleviates the need for Guardianship in most medical scenarios. In many cases, this removes the burden from the courts and reduces the amount of time necessary to find a surrogate which can save patient's lives.
Default surrogacy laws do not require any action by the patient. They come into effect immediately when a doctor decides the patient cannot provide their own medical consent. Once that decision is made, the patient's surrogate steps in to provide informed consent on the patient's behalf.
The Texas Consent to Medical Treatment Act (CMTA) serves well as a model Default Surrogate Consent Statute. The CMTA provides a list of state-selected surrogates who may give informed consent for an incapacitated patient. They are, in order of priority and availability:
? The patient's spouse;
? The patient's children. A sole child may act if they have written permission from the other children to act alone. If the children have not selected a representative, medical decisions will be made by majority vote among the children;
? The patient's parents, if still living;
? Someone the patient "clearly identified" before becoming ill;
? Any other living relative; and,
? Any member of the clergy, whether or not you know that person.
If the patient lacks next-of-kin, their legal proxy is increasingly remote and the statute's last resort is a clergy member (i.e., staff clergy at the hospital.) The clergy member may never have met the patient, and the CMTA does not take into account the patient's faith and that it may be different from the available clergy, or that the patient may be an atheist or agnostic. Thankfully, the clergy provision of the CMTA is unique among state DSCS. No other state allows a member of the clergy to provided informed consent for an incapacitated patient.
Better: Your opportunity to make personal choicesTexas law allows three types of advance directives so that the patient's wishes regarding medical treatment can be honored, even after the patient loses capacity. When the patient makes his own selection, the Default Surrogate Consent Statute is no longer applicable. The choices are:
>> An out-of-hospital Do Not Resuscitate Order, which allows a patient to refuse resuscitation if the patient should die naturally. With it, care providers are banned from using medical techniques that could restore a heartbeat.
>> A Directive to Physicians, which instructs the care providers to disconnect or withhold artificial life support when the patient is terminally ill or has an irreversible condition. With it, the patient is allowed to die in a more natural manner, often with hospice support services.
>> A Medical Power of Attorney, which appoints a surrogate decision maker for more routine health care issues should the patient lose capacity.
All of these should be complemented with HIPAA authorization language. HIPAA is a federal law meant to protect patient privacy, but which can shut down communication between the doctor and surrogate decision maker unless the patient has consented to the release of private health information. None of the state's suggested forms accommodate HIPAA, so you should always have an experienced Elder Law Attorney prepare the advance directives for you.