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Medical Power of Attorney: Information and Answers to Common Questions

This article provides information about Medical Powers of Attorney. Specifically, it discusses what a medical power of attorney is, what it can do, and more. This article was written by Texas Legal Service Center.

What is a Medical Power of Attorney?

A Medical Power of Attorney is a type of “advance directive” that provides a simple way to name someone you trust (an agent) to speak to your health care providers and make health care decisions for you (the principal) when you cannot make decisions for yourself.

 

Where can I get a Medical Power of Attorney form?

You and your family can get a free Medical Power of Attorney form by using the toolkit here or this guided interview tool.

If you are over 60 years of age or older, or if you are receiving Medicare you may call the Legal Hotline for Texans to speak to an attorney free of charge.  Call (800) 622-2520 (Option 3). 

Estate Planning Kit - GUIDED FORM

 

Do I really need a Medical Power of Attorney?

A Medical Power of Attorney makes it clear to health care professional whom you wish to make health care decisions for you. It is not the same as a General Power of Attorney in that the Medical Power of Attorney speaks to health care decisions.

 

Is a Medical Power of Attorney different from a durable power of attorney?

A Medical Power of Attorney is one kind of durable power of attorney.  A Medical Power of Attorney gives your agent the right to make health care decisions for you. A general durable power of attorney empowers the agent to make financial decisions and usually does not give the person the right to make decisions about health care.

 

When can my agent use a Medical Power of Attorney?

The person you choose to make health care decisions on your behalf when you cannot is your “agent.” Any competent adult can be your agent, except:

  • Your physician or health care provider

  • An employee of your physician or health care provider (unless the employee is your relative)

  • Your residential health care provider (a nursing home for example)
  • An employee of your residential health care provider (unless the employee is your relative)

You should choose someone you trust to act according to your wishes. You want someone who has a good knowledge of your wishes (including your values, religious and moral beliefs) and agrees that your medical choices are in your best interest.

 

Your agent cannot make medical decisions for you unless you cannot make decisions for yourself. Your doctor must say, in writing, that you cannot make your own health care decisions. The doctor’s certification goes in your medical file. Your agent can only make medical decisions for you until you are able to make them again. You can revoke (cancel) your Medical Power of Attorney at any time.

 

Do I have to pay for the medical care authorized by my agent?

Yes. You are responsible for paying your medical bills, whether you or your agent requests the care.

 

What decisions can an agent make with a Medical Power of Attorney?

Unless the Medical Power of Attorney limits the agent’s powers, they can make most medical decisions for you. But,

The agent cannot:

  • Agree to hospitalize you for mental health services,
  • Agree to convulsive treatment or psychosurgery,
  • Agree to an abortion, or
  • Refuse care that will keep you comfortable.

 

What is a health care decision?

Health care decisions are agreeing to, or not agreeing to, medical procedures or services to diagnose or treat your physical or mental condition. Your agent has to talk to your doctors before making medical decisions. Your agent can see your medical and hospital records.

 

Can I object to receiving or withholding treatment?

Yes, as long as you can make your wishes known. Even if your agent has a Medical Power of Attorney, your wishes must be honored, even if you do not have the ability to make medical decisions. 

 

Does the agent have to take responsibility for decisions about my health care?

If your agent follows the power of attorney and makes medical decisions in good faith, they cannot be held legally responsible for the decision they made.

 

How long does a Medical Power of Attorney last?

The Medical Power of Attorney begins when your doctor says in writing that you cannot make medical decisions for yourself. It lasts until:

  • You are able to make your own medical decisions,
  • You revoke (cancel)  it,
  • Complete a new Medical Power of Attorney picking a new agent , or
  • Its expiration date (if there is one) arrives.

If the power of attorney expires when you are incompetent, it will stay in effect until you are competent or until you revoke it.

 

What do I have to do for my Medical Power of Attorney to be legal?

You have to sign your Medical Power of Attorney in front of two witnesses OR have your signature acknowledged by a notary public.

You also have to read a disclosure statement that explains what a Medical Power of Attorney does, and you have to sign a statement saying that you read and understood the disclosure statement.

As noted, the Medical Power of Attorney can be signed before a notary public without the need for witnesses. 

 

Who can be a witness?

Both witnesses must be at least 18 years old. And, one of the witnesses cannot be:

  • Your agent,
  • Your primary doctor or an employee of your primary doctor,
  • Your residential care provider or an employee of your residential care provider,
  • Your spouse or any relative,
  • A person entitled to any part of your estate, or
  • Any person who has a claim against your estate. 

 

I have designated a guardian of the person. Should I still sign a Medical Power of Attorney?

Yes, unless you prefer to have an “adult surrogate” make decisions on your behalf during your incompetency up until the time a guardian is named for you (if ever).

  • Medical Power of Attorney takes effect the instant you are declared incompetent. With both a Declaration of Guardian and Medical Power of Attorney in place, your Medical Power of Attorney agent will make health care decisions on your behalf so long as the power of attorney is effective and until a judge signs a court order naming a guardian for you.
    • Medical Power of Attorney agent can act during the gap between incompetency and the time a court names a guardian, or longer if no guardian is ever named for you.
    • Naming an agent in a Medical Power of Attorney can also save you money, because it can often help avoid the expense of a court-ordered guardianship.
  • guardian of the person takes time because the guardian must be approved by a court. If a court approves a guardian, the guardian will then have sole authority to make health care decisions, unless the court determines that the agent should continue.

 

What is the difference between a living will and a medical power of attorney?

In Texas, a living will is called a Directive to Physicians and Family or Surrogates. A Directive to Physicians tells your doctor the kinds of medical care that you want to receive and lists any types of medical procedures that you do not want to have done to you in case you become incapacitated. For example, if you do not want to be placed on a ventilator (artificial breathing machine), you can say that in a Directive to Physicians.

Many people choose to have a Directive to Physicians and a Medical Power of Attorney. If you have both and they conflict with one another, doctors will use the most recent one, the document executed later in time controls. 

 

What is the difference between a Medical Power of Attorney and an Out-of-Hospital Do-Not-Resuscitate Order?

The main difference is the range of medical treatments the documents cover.

An Out-of-Hospital Do-Not-Resuscitate Order (or OOH-DNR, for short) is limited to out-of-hospital settings (for example, long-term care facilities or care given in transport vehicles) to refuse the following life-sustaining treatments should you suffer from respiratory or cardiac arrest:

  • Cardiopulmonary resuscitation (CPR),
  • Advanced airway management,
  • Artificial ventilation,
  • Defibrillation,
  • Transcutaneous cardiac pacing, and
  • Other life-sustaining treatments.

The Medical Power of Attorney, however, is not limited to the above treatments. If your agent’s decision conflicts with your OOH-DNR, the OOH-DNR controls; if no OOH-DNR exists, your agent may make any decisions about an OOH-DNR and may even execute an OOH-DNR on your behalf.

What is the difference between a Medical Power of Attorney and a Declaration for Mental Health Treatment?

Declaration for Mental Health Treatment is strictly limited in scope of treatments and in time.

  • Declaration is limited in scope to the following decisions:
    • Electroconvulsive or other convulsive treatment
    • Treatment of mental illness with psychoactive medication
    • Emergency mental health treatment

Note: A Medical Power of Attorney agent, however, cannot consent to voluntary inpatient mental health services, convulsive (electroshock) treatment, and psychosurgery.

In addition, if the medical treatment you need may be consented to by a Medical Power of Attorney agent, but there is a Declaration for Mental Health Treatment in place for that treatment, the Declaration will override the Medical Power of Attorney.

  • Declaration is strictly limited in the length of time that it is effective:
  • Declaration is effective only for 3 years from the date it is signed (unless you become incompetent, in which case it remains effective for as long as you are incompetent).​

Note: A Medical Power of Attorney remains effective until the expiration date listed by the principal (if any) or until revoked.

 

Is my Texas Medical Power of Attorney valid in other states? What if I signed a Medical Power of Attorney in another state and move to Texas?

Medical Power of Attorney completed in Texas may or may not be valid in another state.

  • A Texas Medical Power of Attorney is only valid out-of-state if the other state’s laws allow it.
  • The other state’s laws may limit what it covers even if it is allowed in that state.

If you are considering moving to another state, you should look up that state’s laws or talk with a lawyer in that state to determine if you need to update your Medical Power of Attorney.

Note: A Medical Power of Attorney (or similar document) that was validly executed in another state is valid in Texas, but only to the extent the document, agent, or treatment is allowed under Texas law.

How do I revoke (cancel) a Medical Power of Attorney?

You can revoke a Medical Power of Attorney even if you cannot make your own medical decisions. To cancel it, you can:

  • Tell the agent, in person or in writing,
  • Tell your doctor or residential care provider, in person or in writing,
  • Do something that shows you intend to revoke the power, or
  • Sign a new Medical Power of Attorney.

If your spouse is your agent, the Medical Power of Attorney automatically ends if you get divorced.

REVOCATION OF POWER OF ATTORNEY - GUIDED FORM