If you become incapacitated in Texas and haven’t signed a Medical Power of Attorney, state law determines who can make medical decisions on your behalf. The law is rigid, and the person legally authorized to make decisions may not be someone you would have chosen to act on your behalf.
In this article, learn what a Medical Power of Attorney does, who can act without one, and why signing one protects your medical autonomy:
What is a Medical Power of Attorney?
A Texas Medical Power of Attorney is a legal document that allows you to name someone you trust—called your agent—to make medical decisions on your behalf if you are unable to make them yourself. This could happen if you are unconscious, seriously injured, or mentally incapacitated.
Only you can select the person who will make these important medical decisions for you. Therefore, you must sign the medical power of attorney while you still have the legal capacity to do so. If you’re already incapacitated, it’s too late to assign that power.
What Happens If You Don’t Have a Medical Power of Attorney in Texas?
If you become incapacitated and have not signed a Texas Medical Power of Attorney, Section 313.004 of the Texas Health and Safety Code determines who can act as your surrogate decision-maker. That statute lists the following individuals, in order of priority, to make decisions on your behalf:
- Your spouse.
- Your adult children.
- Your parents.
- The patient’s nearest living relative.
While this hierarchy might work in some families, it doesn’t reflect every individual’s relationships or preferences.
Why You Need a Medical Power of Attorney?
At first glance, the statute seems to cover all the bases. If I became incapacitated, I would want my husband making important medical decisions on my behalf. Since I now have three adult children, they would be able to act on my behalf, although I would worry about the burden that would place on them.
However, there are many real-life situations where you may not want the default decision-maker assigned by law:
- You want multiple people to make decisions jointly – The law does not automatically allow for shared decision-making.
- You and your spouse both become in the same accident – Who would make medical decisions for you?
- You are a single parent with minor children – If you do not have a strong relationship with your parents, they may still have legal authority to act for you.
- You are engaged but not married – Your fiancé has no legal authority to make decisions for you under Texas law.
- You have a preference between parents – If you want your mother, rather than your estranged father, to make decisions, a Medical Power of Attorney is necessary.
- You are in an untraditional family – If you prefer your partner to act for you instead of a legal relative, the law will not recognize your wishes without a formal document.
Get the idea?
In these situations and many others, not having a signed Medical Power of Attorney could lead to stress, conflict, or decisions that don’t reflect your values.
How to Create a Legally Valid Medical Power of Attorney in Texas
Creating a Medical Power of Attorney in Texas is straightforward—but it must meet certain legal requirements to be valid:
- You must sign it while you have capacity.
- It must be either:
- Notarized, or
- Signed in the presence of two qualified adult witnesses.
Qualified witnesses cannot be:
- Your agent
- A healthcare provider involved in your care
- Someone related to you by blood or marriage
- Anyone entitled to inherit from you under your current estate plan or by law
Working with an estate planning attorney ensures the document is properly executed and reflects your wishes clearly.
Take Control of Your Medical Future
If you don’t have a Texas Medical Power of Attorney, the law, not you, decides who makes medical decisions for you during a crisis. That can lead to uncertainty, disagreement, and outcomes you wouldn’t have chosen.
By signing a Medical Power of Attorney, you ensure your care is guided by someone you trust. Don’t leave such an important matter to chance—plan ahead and protect your rights.
If you have questions about how to create a Medical Power of Attorney or need assistance drafting one, consult an experienced Texas estate planning attorney today.
This article was originally posted on October 24, 2012, and updated on June 9, 2025.
