A medical power of attorney is a paper that allows a person to designate a trusted person to make medical decisions when you become unconscious or not able to make those medical decisions for yourself.
The person designating what happens to them is called a “principal.” The person selected is called an “agent.” A Texas medical power of attorney gives that agent absolute ability to make health care decisions for the principal unless the agent’s authority is expressly restricted.
A medical power of attorney is not just for the elderly. Unexpected injuries or illness can occur to any adult. So it’s an essential document for anyone to have.
A valid medical power of attorney in Texas must either be:
If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal’s name, as long as the document is signed in the principal’s presence and at the principal’s direction.
The witnesses who sign a power of attorney must be competent adults. At least one of the witnesses cannot be someone who:
Signing in front of a notary eliminates the need for signing in the presence of two witnesses and the complications involved in analyzing whether a witness would be disqualified.
A medical power of attorney in Texas is immediately effective after being executed and delivered to the agent. It does not expire unless it contains a specific termination date, or the principal revokes it.
But even if the medical power of attorney has a specific termination date, and the principal is incompetent on that expiration date, the medical power of attorney continues to be valid until the principal becomes competent.
The principal remains in control if the principal can make medical decisions. But if the principal cannot make the medical decisions, the agent can legally make those medical decisions in Texas.
When the principal’s attending physician certifies in writing that based on the physician’s reasonable medical judgment that the principal is incompetent and then files that certification in the principal’s medical records, the principal is considered incompetent. Even if deemed incompetent by a physician, no medical provider can give or withhold treatment from the principal if the principal objects.
The principal can revoke a medical power of attorney by notifying either the agent or health care provider, orally or in writing, of the intent to cancel. That revocation is valid even if the principal is incompetent. A principal can also revoke a medical power of attorney by executing a new one.
If a principal appointed a spouse as the agent, a divorce would revoke the medical power of attorney unless the principal provides otherwise.
Texas has a statute that outlines who makes medical decisions if you do not have a power of attorney. Section 313.004 of the Texas Health and Safety Code provides that if an adult patient of a hospital lacks capacity, an adult can act as a surrogate. In order of priority, the following people can consent to treatment:
The estate planning and probate attorneys at Dunnam & Dunnam are experienced in the complexities of a medical power of attorney. Many considerations go into these decisions about your medical directives. It’s best to have a lawyer walk you through the different scenarios that can lead to the need for a medical power of attorney. Call an estate planning lawyer at Dunnam & Dunnam for a free consultation at 254-753-6437.
Vance Dunnam, Jr. graduated from Baylor University in 1974 with a Bachelor of Business Administration degree and a major in accounting and from Baylor Law School in 1977 with a Juris Doctor degree.
Copyright © Dunnam & Dunnam, L.L.P. All Rights Reserved. Prior results do not guarantee a similar outcome. Dunnam & Dunnam LLP maintains this website to provide you with general information concerning itself and its attorneys, as well as to facilitate communications with persons and entities possibly desiring to establish an attorney-client relationship with a law firm or an attorney. Information provided by and through this website does not create any kind of attorney-client relationship with Dunnam & Dunnam or any of its attorneys and, furthermore, does not constitute and should not to be relied upon by you as any kind of legal advice or service by Dunnam & Dunnam or any of its attorneys. Dunnam & Dunnam L.L.P. assumes no liability for the use or interpretation of information contained herein. This publication is provided “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.