Joanie has just arrived at the large metropolitan Texas hospital where her father, Jack, is in critical care. Joanie’s mother died when Joanie was in her twenties. Joanie lives in New York City and and her father have not been close in recent years. Joanie does not hold a medical power of attorney to make decisions for her father’s care. The hospital has presented Joanie with a Do Not Resuscitate Order(DNR). Joanie is in a quandary over whether or not to challenge the order. How can Joanie determine whether or not the order is valid?

A DNR is an order issued by a physician that instructs health care providers not to instigate cardiac pulmonary resuscitation (CPR) if the patient’s breathing stops or the patient’s heart stops beating.

The Texas Legislature in its last session added Subchapter E to Chapter 166 of the Texas Health & Safety Code Ch. 166. This subchapter is entitled “Health Care Facility Do-Not Resuscitate Orders.” The new provisions apply to in-hospital DNRs only and do not apply to an out-of-hospital DNR order.

An in-hospital DNR must meet one of these five requirements: (1) be in writing, dated, and made while the patient is competent; (2) contain oral directions of a competent patient delivered to or observed by two witnesses, at least one of whom is not an employee of the physician or hospital; (3) contained in an advance directive which meets statutory requirements; (4) contain directions of the patient’s guardian or agent under a medical power which meets statutory requirements; or (5) treatment decision made under Sec. 166.039 for an incompetent or non-communicative person without an advanced directive. (Generally, this would be a decision made by a guardian, spouse, adult children, parent, or nearest relative of the incompetent patient based upon knowledge of the patient’s wishes.)

A DNR can also be valid if: (1) it is not contrary to the directions of a patient who was competent at the time the patient conveyed the directions; (2) in the reasonable medical judgment of the patient’s attending physician, the patient’s death is imminent, regardless of intervention of CPR; and (3) the DNR order is medically appropriate. However, if issued under these conditions, the physician, assistant, nurse, or someone acting on behalf of the hospital must inform the patient of the issuance of the order if he or she is competent. If the patient is incompetent, a diligent effort must be made to notify a known agent under a medical power or legal guardian, or if none, the patient’s spouse, reasonably available adult children, or parents. If there is any conflict with any other valid treatment decision or advance directive, the one validly executed or issued most recently controls.

Joanie’s problems in attempting to validate the DNR could be multi-faceted. If her father is not competent when she arrives and she is presented with a written DNR purportedly signed when her father was competent, how does she determine that is the case? Similarly, if she is presented with an Advance Directive or Medical Power of Attorney purportedly signed by her father, how does she determine that he was competent when he signed it and that it meets Texas statutory requirements? Unless she is otherwise familiar with Texas law, she will need to have a Texas attorney familiar with medical directives and powers of attorney advise her. Joanie may rely more comfortably on the DNR if a guardian operating under the supervision of the probate court authorized it. However, even then, Joanie might have reasons to distrust the guardian’s decision.

As with most life care planning issues, advance planning is the key to insuring that one’s true wishes are being honored when it comes to whether or not to be resuscitated. That planning does not have to be complicated. If Jake had made known to Joanie, orally or otherwise, his wishes, she could have acted accordingly. If he had made clear he would not sign a DNR, she could assume that any document claiming he did was not valid and she could seek counsel to assist her in contesting it. If Jack had made clear to her he wanted a DNR in force, she wouldn’t have to be overly concerned as to whether Texas’ requirements had been met. The solution: let loved ones know whether you want a DNR before the need arises. Ideally, sign an Advance Directive and/or execute a Medical Power of attorney that makes your wishes known in writing.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth.  She lives in beautiful Somervell County, near Chalk Mountain.