If you become incapacitated in Texas and have not signed a Medical Power of Attorney, Texas law will determine who can consent to certain medical treatment on your behalf. The person legally authorized to act may not be the person you would have chosen.
A Texas Medical Power of Attorney lets you name a trusted agent to make health care decisions if you cannot make them yourself. Without one, a legal guardian, an available statutory surrogate, or, in limited circumstances, another physician may be involved. The rules depend on the patient’s condition, care setting, available decision-makers, and the proposed treatment.
Who Makes Medical Decisions Without a Medical Power of Attorney in Texas?
For an adult patient who is comatose, incapacitated, or otherwise unable to communicate in a covered setting, Texas Health and Safety Code Section 313.004 provides a statutory process for consent to medical treatment when a legal guardian or a reasonably available medical-power-of-attorney agent is not available. The statute identifies the following adult surrogates in order of priority, provided the person has decision-making capacity, is reasonably available after a reasonably diligent inquiry, and is willing to act:
- The patient’s spouse
- The patient’s adult children
- The patient’s parents
- The patient’s nearest living relative
If no guardian, medical-power-of-attorney agent, or person on that list is reasonably available, another physician who is not involved in the patient’s treatment may concur with treatment under the statute. A dispute about who may act as a surrogate is resolved by a court with jurisdiction over the relevant proceedings.
| Priority | Who can consent | Notes |
|---|---|---|
| First | Court-appointed guardian of the person | Acts under the court’s order |
| First | Agent under a Medical Power of Attorney | The person you chose in your own document |
| 1 | Spouse | Only if there is no reasonably available guardian or agent |
| 2 | Adult children | If there is no available spouse |
| 3 | Parents | If there is no available spouse or adult child |
| 4 | Nearest living relative | For example, an adult sibling |
| Last resort | A second physician not involved in the patient’s treatment | Concurs with the treatment when no one above is available |
This is not a broad substitute for a Medical Power of Attorney. The statute governs consent to medical treatment in specified circumstances and places limits on what a surrogate may consent to. It does not give a family member the same certainty and individualized authority that a valid Medical Power of Attorney can provide.
Where the Texas Surrogate Rules Apply
Section 313.004 is not a general rule for every medical decision. It applies to an adult patient who is incapacitated and unable to communicate while receiving care from:
- a hospital;
- a nursing home;
- a home and community support services agency, such as a home health provider; or
- a county or municipal jail.
Outside those settings, such as a routine visit to a doctor’s office, the statute does not create a decision-maker, and providers may be unwilling to rely on a relative’s word alone. A Medical Power of Attorney works in every setting.
What a Surrogate Cannot Decide
A surrogate must base every decision on what the patient would want, if those wishes are known. Even then, a surrogate acting under Section 313.004 cannot consent to:
- voluntary inpatient mental health services;
- electro-convulsive treatment; or
- the appointment of another surrogate decision-maker.
If the family cannot agree on who should act, the statute does not let the hospital pick a side. A dispute over who may serve as surrogate can only be resolved by a court that hears guardianship and probate matters.
End-of-Life Decisions Follow a Separate Process
Decisions about withholding or withdrawing life-sustaining treatment are governed by Chapter 166 of the Health and Safety Code, not Chapter 313. When an adult patient cannot communicate and has no living will (directive to physicians), Section 166.039 lets the attending physician make the decision together with:
- the patient’s legal guardian or Medical Power of Attorney agent; or, if there is none,
- one person from this list, in order: the spouse, reasonably available adult children, the parents, or the nearest living relative.
A decision made with a family member must be documented in the medical record and signed by the attending physician. If no family member is available, another physician who is not involved in the patient’s care, or a representative of the facility’s ethics or medical committee, must concur. A relative who disagrees with the decision must apply to the probate court for a temporary guardianship to challenge it.
Not having a directive does not create a presumption that you want every possible treatment. If you have firm wishes about resuscitation, a separate out-of-hospital DNR order may also be appropriate.
When Family Members Disagree or No One Can Act
The statutory order works best when one person clearly has priority and the family agrees. It works poorly when adult children disagree with each other, when a spouse is estranged, or when the closest relative lives far away and cannot be reached. In those situations the hospital may wait, ask the ethics committee to step in, or the family may have to seek a guardianship, which is slower, more expensive, and public.
A Medical Power of Attorney avoids most of these problems because it names one person and alternates in advance. A separate declaration of guardian in advance of later need lets you choose who should serve if a court ever does need to appoint one. See can I appoint my own guardian in case I become incapacitated? A HIPAA authorization completes the set by letting doctors share information with the people you trust.
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 health care decisions on your behalf if you are unable to make them yourself. This could happen if you are unconscious, seriously injured, or mentally incapacitated.
Ideally, you should choose agents and alternates, in case the primary agent is unable or unwilling to act. The document can include limits or instructions, and your agent must make decisions based on your known wishes, including your religious and moral beliefs, or, if those wishes are unknown, your best interests.
Importantly, a Texas Medical Power of Attorney does not authorize your agent to overrule your healthcare wishes. You retain the right to make your own decisions while you are capable of doing so. An agent only has the power to act 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.
Why a Medical Power of Attorney Matters
Only you can choose the person you want making these important decisions. You must sign a Medical Power of Attorney while you have the capacity to do so. If you are already incapacitated, it may be too late to appoint an agent through this document.
The statutory order may work in some families, but it does not reflect every person’s relationships or preferences.
A Medical Power of Attorney is particularly important when any of the following apply:
- You want a trusted friend, unmarried partner, or another person who may not have priority under the statute to act for you.
- You prefer one parent, adult child, or sibling over another family member.
- You want to name alternates in case your first choice is unavailable, unwilling, or unable to serve.
- You want to discuss your values and treatment preferences with the person who may need to act in an emergency.
- You want to reduce uncertainty and conflict during a medical crisis.
When Does a Texas Medical Power of Attorney Take Effect?
An agent’s authroity under Texas Medical Power of Attorney takes effect when you become unable to make your own health care decisions and your physician certifies that fact in writing. While you are able to make your own decisions, you remain in control. Treatment may not be given to or withheld from you over your objection.
The agent’s authority is not unlimited. Texas law restricts certain decisions, and the document itself may contain instructions or limitations. A Medical Power of Attorney should also be considered alongside a directive to physicians and other advance-planning documents when appropriate.
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 the legal execution requirements to be valid. You must sign it while you have capacity, and you must use one of these execution methods:
- Sign the document before two qualified adult witnesses, who must also sign it; or
- Sign the document and have your signature acknowledged before a notary public.
The witness rules are specific. The designated agent, certain relatives and heirs, health care providers and their employees in defined circumstances, and persons with claims against the principal’s estate may not serve as witnesses. At least one witness must satisfy the statutory qualification that applies to the document.
After signing, tell your agent about the appointment, discuss your wishes, and give your agent and health care providers access to a signed copy. Review the document after major life events, changes in relationships, or changes in health.
Frequently Asked Questions
Can my adult child make medical decisions for me without a power of attorney in Texas?
An adult child may be able to act as a statutory surrogate in the circumstances covered by Section 313.004 if there is no reasonably available guardian or Medical Power of Attorney agent.
Can an unmarried partner make medical decisions for me in Texas?
An unmarried partner does not automatically have the same statutory priority as a spouse. A Medical Power of Attorney is the direct way to appoint that partner as your health care agent.
Do I need a notary for a Texas Medical Power of Attorney?
A notary is one valid execution option. Alternatively, you may sign before two qualified adult witnesses who also sign the document. The witnesses must meet the statutory requirements.
Can my brother or sister make medical decisions for me in Texas?
Only if no one with higher priority is reasonably available. A sibling usually qualifies as the nearest living relative when there is no available spouse, adult child, or parent. If you want a sibling to act ahead of a spouse or child, name that sibling in a Medical Power of Attorney.
What happens if I have no family to make decisions?
For consent to treatment in a covered setting, a physician who is not involved in your care may concur with the treatment. For end-of-life decisions, a second physician or the facility’s ethics or medical committee must concur. For ongoing decisions, a court may need to appoint a guardian.
Do these rules apply to my minor children?
No. Medical consent for children is governed by different rules. Parents can authorize another adult to consent for a child, which is useful when children travel or stay with relatives. See consent for treatment of minors by a non-parent.
I live in North Carolina. Are the rules the same?
No. North Carolina has its own order of decision-makers. See who makes medical decisions if there is no health care power of attorney in North Carolina.
Take Control of Your Medical Future
If you do not have a Texas Medical Power of Attorney, the law and the facts of a crisis may determine who can consent to treatment for you. By signing a Medical Power of Attorney, you can select the person you trust, name alternates, and give that person a clearer understanding of your wishes.
If you have questions about creating a Medical Power of Attorney or need assistance drafting one, consult an experienced Texas estate planning attorney. Schedule a free introductory conference with Rania Combs Law.
