A Texas medical power of attorney is a document that allows you, the principal, to designate a trusted family member or friend to make medical decisions for you if you become unconscious or mentally incapable of making those decisions for yourself.
The person you designate to make medical decisions for you is called an agent. Your agent will have broad power to make any health care decisions you could have made if for yourself, unless you specifically restrict that authority in the document.
Medical powers of attorney are not just for the elderly. Unexpected injuries or illness can occur at any age, so all adults should have one in place.
What Are the Requirements of a Medical Power of Attorney in Texas?
To be valid in Texas, a medical power of attorney must either be:
- signed by you in the presence of two witnesses, who also sign the document; or
- signed by you in the presence of a notary public.
If you are physically unable to sign, another person may sign the medical power of attorney with your name, as long as he or she signs in your presence and at your direction.
Can Anyone be a Witness?
Any witnesse who sign a power of attorney must be a competent adult. Texas law also requires that at least one of the witnesses not be someone who:
- You have designated to make health care treatment decisions on your behalf
- Is related to you by blood or marriage;
- Is a beneficiary of your estate;
- Has a claim on your estate;
- Is your attending physician;
- Works for your attending physician; or
- is an employee of a health care facility where you reside, if the employee provides direct care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.
Signing in front of a notary public eliminates the need for signing in the presence of two witnesses.
When Does a Medical Power of Attorney Become Effective?
The medical power of attorney becomes effective immediately after you execute it and deliver it to your agent. It is effective indefinitely unless it contains a specific termination date, you revoke it.
If the medical power of attorney has a specific termination date, but you are incompetent on that date, the medical power of attorney continues to be effective until you become competent.
When Does a Medical Power of Attorney Take Effect?
A medical power of attorney authorizes your agent to act on your behalf only after your attending physician certifies in writing and files the certification in your medical records that based on his reasonable medical judgment, you are incompetent.
As long as you are able to make medical decisions for yourself, you are the one in control. However, in the event that you cannot make these decisions, your “agent” can legally make medical decisions for you.
Regardless of the existence of a medical power of attorney or the declaration of incompetence, the statutes specify no medical provider can give or withhold treatment from you if you object.
Can I Revoke a Medical Power of Attorney?
Yes. You can revoke a medical power of attorney at any time by notifying either your agent or your health care provider of your intent to revoke either orally or in writing. You can also revoke an existing medical power of attorney by simply executing a new one.
The revocation will be effective regardless of whether your capacity to make health care decisions.
If you appoint your spouse as your agent, and you later divorce, the divorce will automatically revoke the medical power of attorney unless you have specifically stated otherwise.
Who Makes Makes Medical Decisions if I Don’t Have a Power of Attorney
Texas has a statute that outlines who makes medical decisions if you do not have a power of attorney. You can find out more by reading: Who Makes Medical Decisions If There Is No Power of Attorney.
An experienced estate planning attorney can help you choose the right agent and understand how to limit or expand their authority.
