How Do I Revoke a Living Will?

02/09/2010 - Category:Power of Attorney - Advanced Health Care Directive - State: TX #20871

Full Question:

How does one revoke/cancel a DPA signed with witnesses related by blood/marriage to the declarant? Mom is in TX with sister who had her daughter & son-in-law sign as witnesses (2008dpa). Mom's previous DPA (2006) was correctly witnessed/notarized. Mom has been in ICU since 1/15 and sister is not honoring her advance directive wishes (no extraordinary care...) Please help me help my Mom go peacefully. She's 87yo and never wanted this. Mom (87yo) lived w/me in MI until about 14 mos. ago and moved out to TX with my sister. Mom had a massive heart attack 1/15 and has been in ICU with 'full code' status. It needs to be DNR and a out of hospital DNR so she can be transferred to an extended care facility and/or hospice facility, but my sister will not allow it. She provided a 2008 dpa that superseded Mom's 2006 dpa w/advance directive. The hospital says only the legal system can revoke/cancel the 2008 dpa, so I need to know what and how to do that. I need an attorney in TX who can help us help my Mom. Please, help us. We've been trying to get advice, but it's difficult being so far away. We'll be flying down to TX this week to see Mom, and want to make the most of that visit to get her into the place she needs to be with no extra-ordinary measures to prolong her life.

Answer:

I'm assuming by DPA, you're referring to an advance medical directive, not just a general durable power of attorney. Please see the statutes below for procedures on how to revoke the directive. Please feel free to consult our attorney directory at the following link: http://lawyers.uslegal.com/health-care/texas/ Please see the following TX statutes: § 166.155 HEALTH & SAFETY. Revocation (a) A medical power of attorney is revoked by: (1) oral or written notification at any time by the principal to the agent or a licensed or certified health or residential care provider or by any other act evidencing a specific intent to revoke the power, without regard to whether the principal is competent or the principal's mental state; (2) execution by the principal of a subsequent medical power of attorney; or (3) the divorce of the principal and spouse, if the spouse is the principal's agent, unless the medical power of attorney provides otherwise. (b) A principal's licensed or certified health or residential care provider who is informed of or provided with a revocation of a medical power of attorney shall immediately record the revocation in the principal's medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal's care. § 166.042 HEALTH & SAFETY. Revocation of Directive (a) A declarant may revoke a directive at any time without regard to the declarant's mental state or competency. A directive may be revoked by: (1) the declarant or someone in the declarant's presence and at the declarant's direction canceling, defacing, obliterating, burning, tearing, or otherwise destroying the directive; (2) the declarant signing and dating a written revocation that expresses the declarant's intent to revoke the directive; or (3) the declarant orally stating the declarant's intent to revoke the directive. (b) A written revocation executed as prescribed by Subsection (a)(2) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of its existence or mails the revocation to the attending physician. The attending physician or the physician's designee shall record in the patient's medical record the time and date when the physician received notice of the written revocation and shall enter the word "VOID" on each page of the copy of the directive in the patient's medical record. (c) An oral revocation issued as prescribed by Subsection (a)(3) takes effect only when the declarant or a person acting on behalf of the declarant notifies the attending physician of the revocation. The attending physician or the physician's designee shall record in the patient's medical record the time, date, and place of the revocation, and, if different, the time, date, and place that the physician received notice of the revocation. The attending physician or the physician's designees shall also enter the word "VOID" on each page of the copy of the directive in the patient's medical record. (d) Except as otherwise provided by this subchapter, a person is not civilly or criminally liable for failure to act on a revocation made under this section unless the person has actual knowledge of the revocation. § 166.046 HEALTH & SAFETY. Procedure if Not Effectuating a Directive or Treatment Decision (a) If an attending physician refuses to honor a patient's advance directive or a health care or treatment decision made by or on behalf of a patient, the physician's refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review. (b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision: (1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to this section adopted by the health care facility; (2) shall be informed of the committee review process not less than 48 hours before the meeting called to discuss the patient's directive, unless the time period is waived by mutual agreement; (3) at the time of being so informed, shall be provided: (A) a copy of the appropriate statement set forth in Section 166.052; and (B) a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the Texas Health Care Information Council under Section 166.053; and (4) is entitled to: (A) attend the meeting; and (B) receive a written explanation of the decision reached during the review process. (c) The written explanation required by Subsection (b)(2)(B) must be included in the patient's medical record. (d) If the attending physician, the patient, or the person responsible for the health care decisions of the individual does not agree with the decision reached during the review process under Subsection (b), the physician shall make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive. If the patient is a patient in a health care facility, the facility's personnel shall assist the physician in arranging the patient's transfer to: (1) another physician; (2) an alternative care setting within that facility; or (3) another facility. (e) If the patient or the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g). (e-1) If during a previous admission to a facility a patient's attending physician and the review process under Subsection (b) have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, Subsections (b) through (e) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted. (f) Life-sustaining treatment under this section may not be entered in the patient's medical record as medically unnecessary treatment until the time period provided under Subsection (e) has expired. (g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted. (h) This section may not be construed to impose an obligation on a facility or a home and community support services agency licensed under Chapter 142 or similar organization that is beyond the scope of the services or resources of the facility or agency. This section does not apply to hospice services provided by a home and community support services agency licensed under Chapter 142.

Please see the information at the following links: http://definitions.uslegal.com/h/health-care-power-of-attorney/ http://definitions.uslegal.com/w/wills/ http://definitions.uslegal.com/l/living-will/ http://definitions.uslegal.com/i/incapacity/ http://lawdigest.uslegal.com/estate-planning/power-of-attorney-overview/ Please see the forms at the following links: http://www.uslegalforms.com/livingwills/texas-living-will-forms.htm

02/09/2010 - Category: Advanced Health Care Directive - State: TX #20871

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