A Texas Medical Power of Attorney allows you to choose someone you trust to make health care decisions for you if you become unable to make those decisions yourself.
It is one of the most important incapacity-planning documents an adult can have.
Without one, Texas law may determine who can consent to medical treatment for you. That person may not be the person you would have selected yourself.
A Medical Power of Attorney also raises several practical questions:
- Does it have to be notarized?
- Who can witness it?
- Can someone sign it for you?
- Do you have to name one of your children?
- When does your agent actually obtain authority?
- How much authority does the agent have?
- Can you revoke the document later?
- Who makes medical decisions if you never sign one?
Texas law answers each of these questions.
What Is a Texas Medical Power of Attorney?
A Medical Power of Attorney is a legal document in which you—the principal—appoint another person—the agent—to make health care decisions for you if you become unable to make those decisions yourself.
For example, your agent may need to act if you are:
- Unconscious after an accident;
- Seriously ill;
- Undergoing a medical crisis that prevents communication;
- Experiencing cognitive impairment; or
- Otherwise unable to understand and make health care decisions.
A Medical Power of Attorney is not only for older adults.
Unexpected illness or injury can occur at any age. Every competent adult should consider who they would trust to make medical decisions if they could not speak for themselves.
A Medical Power of Attorney is one component of a broader Texas estate plan and incapacity plan.
What Are the Requirements for a Valid Texas Medical Power of Attorney?
Texas law provides two principal ways to execute a Medical Power of Attorney.
You may:
- Sign the document in the presence of two qualified adult witnesses who also sign it; or
- Sign the document and have your signature acknowledged before a notary public.
You do not need both witnesses and a notary.
It is one or the other.
Does a Texas Medical Power of Attorney Have to Be Notarized?
No.
A Texas Medical Power of Attorney does not have to be notarized if it is properly signed in the presence of two qualified adult witnesses who also sign the document.
Likewise, if you sign the Medical Power of Attorney and have your signature acknowledged before a notary public, you do not also need two witnesses.
This is an important distinction because people sometimes assume an estate planning document is invalid merely because it lacks a notary seal.
For a Texas Medical Power of Attorney, either method can satisfy the execution requirement:
- Two qualified witnesses; or
- A notary acknowledgment.
Who Can Witness a Texas Medical Power of Attorney?
If you choose the witness method, both witnesses must be competent adults. That means a minor cannot serve as one of the required witnesses.
Texas law also requires that at least one of the witnesses be a disinterested witness who is not:
- The person you named as your health care agent;
- Related to you by blood or marriage;
- Entitled to inherit from you under your Will or by operation of law;
- Your attending physician;
- An employee of your attending physician;
- Certain employees of a health care facility where you are a patient; or
- A person who has a claim against your estate.
Using two clearly disinterested, competent adult witnesses can help avoid questions about whether the document was properly executed.
Can a Minor Child Witness a Texas Medical Power of Attorney?
No.
Texas law requires the witnesses to be competent adults.
A person under 18 therefore cannot satisfy the witness requirement for a Texas Medical Power of Attorney.
If an MPOA was signed using witnesses and one of the required witnesses was a minor, the document may not satisfy Texas execution requirements.
If you are concerned about the validity of an existing document, it is generally better to correct the issue while the principal still has capacity rather than waiting until a medical emergency occurs.
Can Someone Else Sign a Medical Power of Attorney for Me?
Sometimes, but only in a very specific circumstance.
If you are physically unable to sign, Texas law permits another person to sign your name to the Medical Power of Attorney when that person:
- Signs in your presence; and
- Signs at your express direction.
This does not mean that a spouse, child, parent, or other person can independently decide to execute a Medical Power of Attorney for someone who is already incapacitated.
The authority must still come from the principal.
Can I Sign a Medical Power of Attorney for an Incapacitated Parent or Spouse?
No, not simply because you are a family member.
You cannot create a Medical Power of Attorney for another adult merely because that person is no longer capable of signing one. The principal must personally make the appointment while able to do so.
The exception for another person physically signing applies only when the principal is physically unable to sign but is still directing the signature.
For example, if your mother understands exactly what she is signing but cannot physically hold a pen, another person may potentially sign her name in her presence and at her express direction.
That is very different from signing a Medical Power of Attorney after your mother has become incapacitated and can no longer authorize the document.
Why Should You Sign a Medical Power of Attorney Before Incapacity?
A Medical Power of Attorney is a planning document.It is intended to be created before a medical crisis occurs.
If you wait until someone is already unable to make or communicate decisions, it may be too late for that person to select an agent through a Medical Power of Attorney. That can leave the family relying on Texas statutory surrogate-decision rules or, in more complicated situations, court proceedings.
This is why health care planning should be part of comprehensive Texas power of attorney and incapacity planning.
Who Can You Name as Your Medical Power of Attorney Agent?
You are not required to name a particular relative.
You can generally choose a trusted adult who is eligible to serve under Texas law. Many people choose:
- A spouse;
- An adult child;
- A sibling;
- Another relative;
- A close friend; or
- Another trusted person.
However, Texas law prevents certain people from exercising authority as your agent while they occupy particular health-care roles.
For example, a person generally may not exercise authority as your agent while serving as:
- Your health care provider;
- An employee of your health care provider, unless that person is your relative;
- Your residential care provider; or
- An employee of your residential care provider, unless that person is your relative.
Do I Have to Name One of My Children as My Medical Power of Attorney?
No.
Having adult children does not mean you must name one of them as your medical agent. Your agent should be the person you trust most to make difficult medical decisions according to your wishes and values.
That may be a child, but it may also be your spouse, sibling, friend, partner, or another trusted adult.
The most important considerations are not family hierarchy or whether someone might feel offended. Instead, ask whether the person:
- Understands your health care wishes;
- Will respect those wishes even if they disagree personally;
- Can communicate effectively with physicians;
- Can remain calm during a medical crisis;
- Is willing to ask difficult questions;
- Can make difficult decisions under pressure;
- Will be reasonably available when needed; and
- Is willing to serve.
Should You Name an Alternate Medical Power of Attorney Agent?
Usually, yes.
Your first-choice agent may be unavailable when an emergency occurs.
The person may:
- Be traveling;
- Become ill;
- Die before you;
- Lose capacity;
- Decline to serve; or
- Become legally ineligible to act.
Naming one or more alternate agents can help prevent a gap in decision-making authority.
Can You Name More Than One Person to Make Medical Decisions?
The Texas statutory Medical Power of Attorney form is structured around naming an agent and alternate agents rather than requiring several people to make every decision together.
There can be practical advantages to having one clearly identified decision-maker. Requiring several people to agree on every medical decision could cause delays or conflict during an emergency.
If you want a more unusual decision-making arrangement, discuss the structure with an estate planning attorney before assuming a standard form will accomplish it.
When Does a Texas Medical Power of Attorney Become Effective?
This question involves two related concepts.
The Medical Power of Attorney itself generally becomes effective after it is properly executed and delivered to the agent, subject to its terms.
But that does not mean your agent immediately takes over your medical decisions.
When Can My Medical Power of Attorney Agent Actually Make Decisions?
Your agent may exercise decision-making authority only after your attending physician determines that you are unable to make health care decisions and documents that determination in writing in your medical record.
Until then, you remain the decision-maker.
For example, signing a Medical Power of Attorney today does not give your adult child authority to overrule your medical choices tomorrow simply because you named that child as your agent.
The agent’s authority is designed to step in when you cannot make decisions yourself.
If you regain the ability to make your own health care decisions, you again control those decisions.
Can My Agent Override Me if I Object to Treatment?
No.
Texas law provides an important protection for the principal.
Treatment generally may not be given to or withheld from you over your objection merely because a Medical Power of Attorney exists or because an incapacity determination has been made.
Your agent does not gain unrestricted power over you.
What Authority Does a Texas Medical Power of Attorney Agent Have?
Subject to Texas law and any limitations you place in the document, your agent generally has broad authority to make health care decisions you could have made yourself if you were capable.
Depending on the circumstances, those decisions can include:
- Consenting to medical treatment;
- Refusing medical treatment;
- Communicating with physicians and other providers;
- Evaluating treatment alternatives;
- Selecting among available treatment options; and
- Making other health care decisions within the scope of the document and Texas law.
The agent should make decisions based on what the agent knows about your wishes, including your religious and moral beliefs.
If the agent does not know what you would want, Texas law generally directs the agent to act according to the agent’s assessment of your best interests.
Does a Texas Medical Power of Attorney Give the Agent Unlimited Authority?
No.
There are two important sources of limits.
First, Texas law itself prohibits an agent from consenting to certain matters.
Second, you can place additional limitations in your Medical Power of Attorney.
What Medical Decisions Can an Agent Not Make?
Texas law provides that an agent under a Medical Power of Attorney may not consent to:
- Voluntary inpatient mental health services;
- Convulsive treatment;
- Psychosurgery;
- Abortion; or
- Neglect of the principal through omission of care primarily intended to provide comfort.
These statutory restrictions apply regardless of how broadly the Medical Power of Attorney is drafted.
Can I Limit My Agent’s Authority?
Yes.
You may include limitations in the Medical Power of Attorney if there are particular decisions you do not want your agent to make.
For example, someone may have strong religious, moral, or personal views concerning particular treatments or procedures.
However, restrictions should be drafted carefully.
An overly narrow or ambiguous limitation can make the agent’s job difficult precisely when fast decisions are necessary.
It can therefore be useful to coordinate your Medical Power of Attorney with other advance-directive documents that express your health care preferences.
Is a Medical Power of Attorney the Same as a Living Will?
No.
The two documents perform different functions.
A Medical Power of Attorney primarily answers:
“Who should make medical decisions for me if I cannot?”
A living will—called a Directive to Physicians and Family or Surrogates in Texas—primarily communicates your preferences concerning specified life-sustaining treatment in certain terminal or irreversible conditions.
Many comprehensive estate plans contain both documents because they address different issues.
Is a Medical Power of Attorney the Same as a Financial Power of Attorney?
No.
A Medical Power of Attorney governs health care decision-making.
A financial or statutory Durable Power of Attorney generally allows an agent to handle financial and property matters within the authority granted by that document.
One does not substitute for the other.
Learn more about Texas powers of attorney and incapacity planning.
How Long Does a Texas Medical Power of Attorney Last?
A Texas Medical Power of Attorney can generally remain effective indefinitely unless:
- You revoke it;
- It contains a specified expiration date;
- A later Medical Power of Attorney supersedes it; or
- Another event specified by Texas law terminates the agent’s authority.
If the document contains an expiration date but you are incompetent on that date, Texas law generally allows the Medical Power of Attorney to remain effective until you regain competence unless it is otherwise revoked.
How Do I Revoke a Medical Power of Attorney in Texas?
Texas gives the principal broad ability to revoke a Medical Power of Attorney.
You may generally revoke it by:
- Orally notifying your agent or a licensed or certified health or residential care provider that you intend to revoke it;
- Giving written notice of your intent to revoke;
- Taking another action that clearly demonstrates a specific intent to revoke the Medical Power of Attorney; or
- Executing a subsequent Medical Power of Attorney.
Do I Have to Be Competent to Revoke My Medical Power of Attorney?
Texas law is unusual and explicit on this point.
A principal’s revocation is not dependent on the principal’s capacity to make health care decisions or mental state.
In other words, an oral or written notification or other qualifying act evidencing a specific intent to revoke can be effective even if the principal has been determined to lack health care decision-making capacity.
Should I Revoke My Medical Power of Attorney in Writing?
Although Texas law permits oral revocation, written documentation is often useful as a practical matter.
A written revocation can reduce uncertainty about:
- Whether a revocation actually occurred;
- Which document was revoked;
- When the revocation occurred; and
- Who was notified.
If you are replacing an agent, executing a new Medical Power of Attorney and distributing the new document can provide greater clarity.
Who Should Be Told That I Revoked My Medical Power of Attorney?
Notify people who may rely on the old document.
That can include:
- The former agent;
- Your new agent;
- Your physicians;
- Hospitals or medical facilities that have the old document;
- Residential care providers; and
- Family members who may need to know which document is current.
If a health or residential care provider receives notice of the revocation, Texas law generally requires the provider to record the revocation in the medical record and notify the agent and known providers currently responsible for the patient’s care.
Does Signing a New Medical Power of Attorney Revoke the Old One?
Yes.
Executing a subsequent Medical Power of Attorney is one of the statutory methods of revoking a prior Medical Power of Attorney.
As a practical matter, you should still retrieve or destroy obsolete copies when possible and notify people who may have relied on the earlier document.
What Happens if My Spouse Is My Medical Agent and We Divorce?
Texas law generally revokes the former spouse’s authority as agent if:
- The marriage is dissolved by divorce;
- The marriage is annulled; or
- The marriage is declared void.
The Medical Power of Attorney can provide otherwise, so the specific document should always be reviewed.
Divorce is also a good time to review your broader estate and incapacity plan, including your Will, financial power of attorney, beneficiary designations, and other health care directives.
Who Makes Medical Decisions if There Is No Medical Power of Attorney in Texas?
If an incapacitated adult does not have a reasonably available legal guardian or Medical Power of Attorney agent, Texas law may authorize a surrogate to consent to certain medical treatment.
For patients covered by Chapter 313 of the Texas Health and Safety Code, the statutory priority generally is:
- The patient’s spouse;
- The patient’s adult children;
- The patient’s parents; and
- The patient’s nearest living relative.
The person must meet the statutory requirements, including having decision-making capacity, being reasonably available after a reasonably diligent inquiry, and being willing to act.
The statute applies in specified settings and circumstances, including certain adult patients in hospitals, nursing homes, home and community support services, and county or municipal jails.
Why Not Just Rely on Texas’s Default Surrogate Law?
Because the statutory hierarchy may not reflect your wishes.
Consider these situations.
You Are Unmarried but Have a Long-Term Partner
An unmarried partner does not automatically outrank your adult children, parents, or other relatives merely because the relationship is important to you.
You Are Engaged
A fiancé is not a spouse for purposes of the statutory priority list.
You Prefer One Child Over Another to Make Medical Decisions
You may have several adult children but believe one is far better suited to making difficult medical decisions.
The statute does not replace the clarity of personally naming your preferred agent.
You Are Estranged From a Relative
Your closest legal relative may not be the person you trust most.
Your Spouse Is Also Injured
If you and your spouse are involved in the same accident, the person you expected to make decisions may be unavailable.
You Have No Close Relatives
A close friend may understand your wishes better than your nearest living relative, but the law cannot know that unless you make a valid appointment.
What if Several Adult Children Disagree About Treatment?
Family disagreement is one reason it can be useful to select an agent in advance.
When several relatives believe they should be involved, disputes can make an already difficult medical crisis even more stressful.
A Medical Power of Attorney gives health care providers a clearly identified decision-maker rather than forcing the family to determine who should act after incapacity has already occurred.
Can the Default Surrogate Make Every Medical Decision?
No.
Chapter 313’s surrogate-consent provisions have their own statutory limits and do not authorize every type of decision.
For example, the chapter does not govern certain decisions involving withdrawal or withholding of life-sustaining treatment under the advance-directive provisions of Chapter 166.
This is another reason the absence of a Medical Power of Attorney should not be viewed as equivalent to having a personally designed health care plan.
When Should You Review Your Texas Medical Power of Attorney?
Review the document periodically and after significant life changes.
Examples include:
- Marriage;
- Divorce;
- Death of your agent;
- Illness or incapacity of your agent;
- Moving to another state;
- A serious medical diagnosis;
- A change in your relationship with the agent;
- A change in your religious or medical preferences; or
- A significant update to your broader estate plan.
Where Should You Keep Your Medical Power of Attorney?
The document should be secure but accessible.
Consider providing copies to:
- Your primary agent;
- Your alternate agent;
- Your primary care physician;
- Other physicians involved in ongoing care;
- Your estate planning attorney; and
- A trusted family member, where appropriate.
Your agent should know that the document exists and how to obtain it in an emergency.
An MPOA that no one can locate when you are hospitalized is far less useful than one incorporated into a practical incapacity plan.
Common Texas Medical Power of Attorney Mistakes
Using a Minor as a Witness
The witnesses must be competent adults.
Using Two Witnesses Who Do Not Meet the Statutory Requirements
At least one witness must satisfy Texas’s disinterested-witness rules.
Assuming a Notary Is Always Required
A properly witnessed Medical Power of Attorney does not also need to be notarized.
Trying to Sign for Someone Who Is Already Incapacitated
A family member cannot create the principal’s Medical Power of Attorney after the principal has lost the ability to make the appointment.
Naming Someone Merely Because They Are the Oldest Child
Choose the person best suited to make medical decisions according to your wishes.
Failing to Name an Alternate Agent
Your first-choice agent may be unavailable when needed.
Assuming the Agent Can Do Anything
Texas law imposes express limits on an agent’s authority, and you can add further restrictions.
Failing to Tell the Agent About Your Wishes
The document names a decision-maker, but conversations help that person understand what decisions you would actually want.
Keeping an Obsolete Document After a Change
When you replace or revoke an MPOA, make sure health care providers and agents know which document is current.
Frequently Asked Questions About Texas Medical Powers of Attorney
Does a Texas Medical Power of Attorney need to be notarized?
No. You may generally execute it either before a notary public or in the presence of two qualified competent adult witnesses.
How many witnesses do I need?
If you use witnesses rather than a notary, you need two competent adult witnesses. At least one must meet Texas’s statutory disinterested-witness requirements.
Can my child witness my Medical Power of Attorney?
An adult child may potentially serve as one of the witnesses, but because the child is related to you, the adult child cannot serve as the required disinterested witness. A minor child cannot serve because both witnesses must be competent adults.
Can someone physically sign the Medical Power of Attorney for me?
Yes, if you are physically unable to sign, another person may sign your name in your presence and at your express direction.
Can I sign a Medical Power of Attorney for my incapacitated parent?
No. You cannot independently create the appointment for an incapacitated adult. The principal must personally make and authorize the appointment.
Do I have to name my spouse or children as my agent?
No. You can choose an eligible trusted person who you believe will best carry out your health care wishes.
When can my agent start making decisions?
The agent may exercise authority after the attending physician certifies in writing in the medical record that you lack the required decision-making capacity.
Can my agent override me?
No. Texas law does not permit treatment to be given or withheld over the principal’s objection merely because an MPOA is in effect.
Does my agent have unlimited authority?
No. Texas law prohibits an agent from consenting to certain treatments, and you may impose additional limitations in the document.
Can I revoke my Medical Power of Attorney?
Yes. Texas law permits revocation through oral or written notice, other conduct demonstrating a specific intent to revoke, or execution of a subsequent Medical Power of Attorney.
Does divorce revoke my spouse’s authority?
Yes. Divorce, annulment, or a declaration that the marriage is void generally revokes the spouse’s authority as agent unless the Medical Power of Attorney provides otherwise.
Who makes medical decisions if I don’t have a Medical Power of Attorney?
In circumstances governed by Texas Health and Safety Code Chapter 313, the surrogate priority generally starts with the spouse, followed by adult children, parents, and the nearest living relative when the statutory requirements are met.
Take Control of Who Makes Your Medical Decisions
A Texas Medical Power of Attorney allows you to make an important decision while you still can: who should speak for you if you cannot speak for yourself?
Texas law provides default rules when no agent is available, but those rules cannot know which family member or friend you trust most, who understands your values, or who is best equipped to make difficult decisions under pressure.
A properly executed Medical Power of Attorney gives you greater control.
It also gives your family and health care providers clearer guidance during a medical crisis.
An experienced Texas estate planning attorney can help you create a Medical Power of Attorney, financial power of attorney, advance directive, and other incapacity-planning documents that work together.
