One of the most important aspects of any comprehensive estate plan is determining who will act for you in the event that you are unable to make decisions for yourself. This could be the result of a long battle with dementia or Alzheimer’s or a sudden change because of a traumatic injury such as a car accident. In either instance, if the patient does not have a plan in place to name a decision maker, the State of Texas will provide one.[1]

For married couples, the state’s first choice is the patient’s spouse. In the event that a person is single, the state’s next choice is an adult child who has the permission of the rest of his or her siblings to act. This can lead to an incredibly tricky situation. Siblings do not always get along, and these differences can be exacerbated when making a treatment decision on behalf of a parent. Sibling discord during an emotional time can be (and usually is) further compounded when no one knows the parent’s wishes. While making a treatment decision for an incapacitated parent is never easy, it can be much less difficult with a plan in place ahead of time.

If a patient does not have a spouse or children (or those individuals cannot be located during a reasonable search), physicians will consult with the patient’s parents, then anyone identified to make decisions for the individual, then the nearest living relative and finally with a member of the clergy. In all cases, the surrogate decision maker must attempt to make a decision based on the patient’s wishes, but that gets more difficult as the decision makers get further removed from the patient. Understandably, it would be difficult for an aunt or uncle (who only sees the patient a couple times a year at holidays) to know the patient’s wishes when facing complex treatment decisions.

Even though the individuals named above are authorized to make treatment decisions, there are some important exceptions. Unless the patient has an irreversible or terminal condition (as described in §166 of the Texas Health and Safety Code), a health care surrogate may not make the decision to withhold or withdraw life-sustaining treatment.

The simplest way to avoid confusion is to execute a properly-drafted Medical Power of Attorney as well as a Directive to Physicians (also known as a living will). These documents work together to not only name someone to make decisions on your behalf but also to provide that person with guidance as to your wishes for treatment and end-of-life care.

[1] Please see section Chapter 313 of the Texas Health and Safety Code.