TOM MAYO

The federal Patient Self-Determination Act now requires hospitals to inform patients of their rights under state law to create "advance directives" relating to their medical care and to find out whether patients have such advance directives. Over the past year, I have spoken to many groups about this new law. Here are my answers to their most commonly asked questions.

1) What are advance directives?

These are the living will (called a "directive to physicians" by Texas law) and the durable power of attorney for health care. The living will is a document that tells your physician that you do not want life-sustaining procedures when you have an incurable or irreversible condition, you have become incompetent, and life-sustaining procedures will only prolong the dying process. The power-of-attorney document names a surrogate decision-maker who has the legal authority to consent to (or refuse) any medical procedure in the event that you lack the competency to direct your own medical care.

2) How are these two advance directives different?

The living will deals with "end-of-life" decisions about life- sustaining procedures for incompetent patients with incurable or irreversible conditions. The durable power of attorney for health care applies to all patients who are unable to make their wishes known, no matter what their physical condition or chances for recovery, and to all medical decisions, not just decisions about life-sustaining procedures.

3) If I have a durable power of attorney for health care, do I also need a living will?

If there is someone who knows you well and whom you trust to make the right decision on your behalf, the power-of-attorney document will ensure that your wishes are known whenever a treatment decision needs to be made. Your surrogate decision-maker has the legal authority to refuse life-sustaining procedures even without a living will. As a practical matter, however, the living will might be of some help.

4) What is the best way to ensure that my wishes will be honored?

All by themselves, advance directives cannot guarantee that your preferences will be followed by the health care team. The key is communication with your physician and your family members. The advance directives are one way to communicate, but they can fall on deaf ears unless the people who are actually making medical decisions for you understand just what your values and preferences are.

5) Do I need a lawyer to advise me about advance directives?

The documents themselves are relatively easy to understand, but most people will need help. By far the most important assistance to seek out is your physician's. He or she should be able to explain clearly just what the advance directives mean, the medical situations in which they can be useful, and the kinds of decisions that may have to be made in the absence of advance directives. If you have executed other types of powers of attorney, your lawyer can help ensure that the various documents fit together and do not contradict one another.

6) Why does the federal government want me to execute an advance directive?

Some have worried that the Patient Self-Determination Act was passed as part of the Omnibus Budget Reconciliation Act of 1990. Their concern is that the Patient Self-Determination Act is nothing more than an attempt to contain federal Medicare costs. In fact, Congress' end-of-year budget reconciliation bills always contain laws that are unrelated to the budget, and the advance directive legislation is one example.

The Supreme Court's decision in the case of Nancy Beth Cruzan, however, does convey one clear message: Your best protection against unwanted medical procedures is to make your wishes known clearly before you go into the hospital with a catastrophic injury or illness. This requires candid discussions with your regular physician and members of your family. If you are comfortable with the living will or the durable power of attorney for health care, they can help.

7) What if I decide not to fill out an advance directive?

As a matter of state and federal law, as well as good medical ethics, you are entitled to optimum quality care whether or not you have an advance directive. Beneficial care, including care that respects your dignity and keeps you comfortable, is your right. If, however, you are concerned about the kinds of medical procedures you will receive when you are unable to communicate, advance directives give you two different ways to make your wishes known.

8) Where can I get the proper forms?

Your lawyer, your physician, most Dallas-area hospitals and the Texas Medical Association in Austin can provide forms.

9) What if I change my mind about my advance directive?

Advance directives are legal documents and should not be executed casually. If you change your mind about either the living will or the durable power of attorney, however, each may be easily revoked, orally or in writing, whether or not you are legally competent to make health care decisions for yourself.

Despite the additional costs and administrative burden on hospitals to comply with this new federal law, this is a good law, as far as it goes. If it encourages people to begin to consider what kind of death they want for themselves before the moment of decision is at hand, and to discuss their feelings and preferences with their physicians and family members, the law will be a success.

Tom Mayo is an associate professor of law at Southern Methodist University, where he teaches bioethics and law, and he is of counsel to Haynes and Boone, a Dallas law firm.

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Tom Mayo, Doctor, lawyer look at patients' rights