Who Makes Medical Decisions in Texas If There Is No Medical Power of Attorney?
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. This article explains what a power of attorney does, who makes medical decisions for you if you don’t have one, and situations when the default rules
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 become incapacitated.
Only you can select the person who will make these important medical decisions for you. That’s why 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.
However, if you become incapacitated and do not have a Texas Medical Power of Attorney, a family member may still have the power to consent to medical treatment on your behalf. It may just not be the person you would have preferred to act as your surrogate.
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.
- Any adult children.
- Your parents.
- A nearest living relative.
That hierarchy works for some people, but could be problematic for others.
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 to make important medical decisions for me. Since I now have three adult children, they could act on my behalf if my husband were not available, although they live out of state and may be difficult to reach.
But there are many real-life situations when you may not want the default decision-maker assigned by law to make medical decisions for you. For example, what if:
- You and your spouse get in a serious accident that incapacitates both of you?
- Or if you are a single parent with minor children, you do not have a good relationship with your parents?
- How about if you’re engaged to be married and would prefer your fiancé, rather than your parents, make medical decisions on your behalf?
- Or if you’d prefer that your mother, rather than your estranged father, make medical decisions?
- What if you’re part of an untraditional family and would prefer your partner to make important medical decisions rather than members of your family?
- Or you’d like two or more people to make decisions jointly?
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.
Requirements for a Valid Medical Power of Attorney in Texas
A Medical Power of Attorney in Texas must meet certain legal requirements to be valid.
First, you must have legal capacity when you sign the document. This means that you are over 18 years old and understand what you are signing and what it does. You must also sign in the presence of two witnesses, who also sign the document, or in the presence of a notary public.
If you choose the two-witness route, both witnesses must be competent adults, and at least one of them must not beyour chosen agent, a relative by blood or marriage, someone entitled to part of your estate, your attending physician, an employee of your attending physician, certain facility staff involved with your care, or someone with a claim against your estate.
Your Medical Power of Attorney should also include a required disclosure statement.
Working with an estate planning attorney ensures the document is properly executed and reflects your wishes clearly.
When Does a Medical Power of Attorney Take Effect?
Your agent can step in to make decisions for you only when you can no longer make them for yourself. As long as you’re capable of making your own decisions, you’re in control.
One common misperception is that an agent named in a Medical Power of Attorney can override your wishes. They can’t. The only time they will be able to step in and act on your behalf is when a physician has determined that you are no longer competent.
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.
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 that someone you trust will have the authority to direct your care.
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 January 27, 2026.
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Comments
charles
June 8, 2015 at 11:04am
i have encountered a problem with my mother in law wanted to be in control of my wife treatment. She wants to make decisions pertaining to my wife medical decisions. What can I do deter her interference?
Rania Combs
June 22, 2015 at 12:57pm
A medical power of attorney will allow your wife to designate a person she chooses to make medical decisions on her behalf if she is incapacitated.
Natash
March 26, 2019 at 8:03am
My brother doesn’t have a will or power of attorney,
and has 3 sisters. Who would be the power of attorney? The oldest sister?
Rania Combs
April 24, 2019 at 5:04pm
If he has not signed a power of attorney appointing an agent, no one can the the agent under the power of attorney.
kaitlyn
December 7, 2015 at 3:11pm
I am pregnant. We aren’t married just yet, would it be ideal for me to make the father my power of attorney in case something happens in labor or before. 1,so that he is able to make the medical desisions he and I have discussed, rather than my next of kin. And 2 will it protect him if say, he makes the decision to save baby and not myself (because that is what I want) and my family were to sue him for that desision?
Rania Combs
December 31, 2015 at 7:09pm
You can appoint whomever you feel will best carry out your wishes. However, if you don’t have a medical power of attorney, the Texas statutes will dictate who will make medical decisions for you. The following article explains who can consent to treatment without a power of attorney: Can Someone Make Medical Decisions for Me If I Do Not Have a Medical Power of Attorney?
Jennifer
March 23, 2016 at 1:24am
I need to assist my father in making appointments, discussing medical records and billing. He is a fully functioning adult but is abdicating all medical treatment. Would a medical power of attorney suit our needs?
Rania Combs
March 23, 2016 at 9:52am
A medical power of attorney and HIPAA authorization would help you assist your father.
Dan
September 16, 2016 at 4:55pm
Does Texas law allow multiple agents to be appointed re: medical & general POAs? Thank You.
Rania Combs
September 23, 2016 at 3:43pm
Hi Dan. Yes. Multiple agents can be appointed.
Anne
January 18, 2017 at 6:06pm
If I appoint a medical power of attorney, can I still make my own medical decisions, such as get dentures, even if my medical power of attorney does not agree I should have them, assuming I am not declared incapacitated in any way?
Rania Combs
January 23, 2017 at 5:56pm
Of course. The medical power of attorney applies in your incapacity. When you sign it, you’re not appointing someone to act instead of you, just for you when you are incapacitated and are unable to make those decisions.
Rebecca McGrew
April 5, 2017 at 1:56pm
If I become unable to make my own decisions does my spouse automatically get medical power of attorney if nothing was signed beforehand or would my children be able to make medical decisions for me?
Rania Combs
April 5, 2017 at 2:17pm
The following article may answer your question: Can Someone Make Medical Decisions For Me If I Don’t Have A Medical Power of Attorney?
Kat
March 21, 2018 at 12:19am
My sister is hospitalized and aware, but in and out of consciousness. She will be hospitalized for weeks. There is no poa or advanced directive. Under this situation her husband would make the decisions, but he is barely holding himself together and becoming increasingly unstable. He also has a history of spousal abuse – hes been arrested for it. They are not legally separated but have been living in different states. My sister’s adult daughter is stable and able to make decisions for her. What can be done to remove him as the decision maker for her healthcare.
Rania Combs
March 23, 2018 at 9:01am
I recommend that you engage an attorney in your community for assistance.
Janice Haley
November 24, 2018 at 8:53pm
I have 2 adult children but I also have a neice that is more like my daughter, she is also a nurse & I would like her to be my medical power of attorney. Can I appoint her instead of my children?
Rania Combs
November 28, 2018 at 7:01pm
You can appoint whomever you choose to serve as your agent.
Mary
December 10, 2018 at 12:15pm
Can I give someone other than my spouse medical power of attorney?
Rania Combs
December 10, 2018 at 12:51pm
Yes.
Joshua
January 22, 2019 at 10:42pm
Can someone make me power of attorney without my approval or without me signing anything?
Rania Combs
January 28, 2019 at 9:07pm
It is always best to verify those named as power of attorney are willing to act as agent because someone who is unwilling to serve can decline to take on the responsibility.
jane
February 24, 2019 at 1:01pm
What happens if person has no one to name as POA? What happens in case of being incapacitated?
Rania Combs
April 24, 2019 at 5:51pm
In that case, a court-appointed guardian may be necessary.
Erica
June 15, 2019 at 2:11am
My partner and I have been discussing this. She has no parents but 8 living siblings. We are not married. We live in Texas. Would her siblings automatically be considered the decision makers over myself, simply because we are not married? We do not intend on being married however she only wants me making any decisions for her.
Rania Combs
July 18, 2019 at 12:03pm
If you want your partner to make medical decisions for you, you should appoint her as your agent in a medical power of attorney.
Carlo
March 10, 2020 at 4:46pm
The differences between the legal terms, “durable power of attorney”, “medical power of attorney”, “durable medical power of attorney” and “medical directive” seem to be saying essentially the same thing but I know that legal terminology is usually very precise so that, the various terms must be describing subtle differences. However, everything I have read takes me around in circles. Could you very simply tell us what it is that makes the terms different or are they all essentially the same ?
Rania Combs
March 13, 2020 at 11:08am
The articles you are reading may be referring to the same thing. Different states may use different terminology for what is known in Texas as a Medical Power of Attorney. A Medical Power of Attorney allows a person to appoint an agent to make medical decisions for him if he becomes incapacitated and cannot make those decisions for himself. The Medical Power of Attorney remains in effect until revoked, which means it is durable. The following article may help: What is the difference a Medical and Durable Power of Attorney?