Medical Powers of Attorney in Texas: Answers to Common Questions
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
- 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.
- Medical powers of attorney go into effect immediately when signed, but can only be used when:
- the principal is incompetent, and
- the principal’s attending physician certifies the principal is incompetent.
- Once the principal regains competency, the agent cannot speak on the principal’s behalf.
- The principal can object to health care decisions at any time.
- The agent’s decisions will not override the principal’s objection—even if the principal is incompetent.
The law says you are incompetent when you do not have “the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.”
With a Medical Power of Attorney, you can name an agent of your choice who will make sure you get the medical treatment you want in the event of incompetency.
- Incompetency can happen to anyone, no matter what age.
- Incompetency can be temporary (such as suffering from an accident or being unconscious for a short period of time) or can be long-term.
The law says that certain people (such as your spouse, adult children, or parents) can make health care decisions as an “adult surrogate” on your behalf even if you do not have a Medical Power of Attorney. Read the law here: Tex. Health and Safety Code § 313.004.
- With no agent in place, the following people can make decisions, in order of priority:
- your spouse,
- your adult child who has the waiver and consent of all other qualified adult children of yours to act as the sole decision-maker,
- a majority of your reasonably available adult children,
- your parents, or
- an individual you clearly identified to act for you before you became incapacitated, your nearest living relative, or a member of the clergy
However, it is still important to name an agent even if you are married. For example you may want to:
- Name a back-up agent to make health care decisions for you if your spouse cannot.
- You and your spouse could be involved in an accident together
- Your spouse could be unavailable at the time you need an agent
- You may want to name someone other than your spouse to make health care decisions for you.
- You may want to limit the decision-making authority of your agent, and you can do this with a Medical Power of Attorney.
- Without a Medical Power of Attorney in place, the law controls what decision-making authority is allowed.
- If you would like to control the scope of decision-making authority and people that can make health care decisions on your behalf, you should sign a Medical Power of Attorney.
No, not unless you set up your Medical Power of Attorney that way.
The law automatically removes your spouse as agent under the power of attorney if you divorce after signing the power of attorney. However, if you want your spouse to be your agent even after a divorce, do either of the following:
- Specifically state you want your spouse to continue to be your agent even after a divorce when completing the form, or
- Sign a new power of attorney after your divorce that names your ex-spouse as agent.
- Be an adult. (This means you are at least 18 years old, married, divorced, a member of the Armed Forces, or have been declared to be a legal adult by a court order.)
- Be competent (you have to understand the nature and consequences of completing a Medical Power of Attorney the moment you sign it),
- Read, understand, and sign a disclosure statement,
- Complete the Medical Power of Attorney form, and
- Sign the Medical Power of Attorney form in front of two competent adult witnesses or in front of a Texas notary.
Both witnesses must be adults and be competent.
At least one of your witnesses must not be:
- The agent you name in your Medical Power of Attorney,
- Related to you by blood or marriage,
- Someone who will inherit from you if you die, or listed as a beneficiary in your will,
- Your primary physician, an employee of your physician, or an employee of your physician’s health care facility, and
- Someone that, at the time you sign the form, will have a claim on your estate when you die (such as a lien).
Your Medical Power of Attorney is effective until:
- The expiration date you included on the form (if any),
- You revoke (cancel) the form, or
- You die.
Note: If you are incompetent when the expiration date (if any) listed on the form arrives, the Medical Power of Attorney will remain effective until you regain competency or it is revoked (canceled).
There are two ways to cancel or change the agent you chose:
- Revoke (cancel) the Medical Power of Attorney, or
- You can revoke your current choice at any time by telling either the agent or a licensed/certified health care provider.
- This can be done orally, in writing, or by any other act that shows you want to end the Medical Power of Attorney (such as ripping up the form in front of your agent).
- Complete a new Medical Power of Attorney.
- This is the preferred method of canceling an agent because your intent will be clear, and because you will have named a new agent.
- Completing a new Medical Power of Attorney will replace the one before it.
- Canceling a power of attorney will not revive the one before it. You must complete a new form to choose a new agent.
Your agent must make medical decisions for you according to his or her knowledge of your wishes (including religious and moral beliefs) or according to his or her assessment of your best interests.
Although your agent may make most health care decisions for you, your agent cannot:
- make a decision that you have expressly limited (not allowed),
- commit you to voluntary inpatient mental health services,
- agree to convulsive (electroshock) treatment,
- agree to psychosurgery,
- allow abortion,
- decide to withhold medical care intended to offer you comfort, or
- make a decision or act against a Directive to Physicians or an Out-of-Hospital Do Not Resuscitate Order (if completed).
Your agent may begin to make medical decisions only after:
- You have read the disclosure statement and completed the Medical Power of Attorney form, and
- Your physician declares you are incompetent
- In order for your physician to declare you incompetent, your physician must certify the decision in writing and file the certification in your medical record.
Yes, up to a certain point. Your physician has to try to inform you of proposed treatments, or proposed withdrawal or withholding of treatment before following through with your agent’s decision.
A physician or other health care provider must follow your agent’s instructions (so long as it is not contrary to your desires, the law, and the Medical Power of Attorney). They do not have to make sure that any action by your agent is what you would have agreed to if you were able.
If your physician is unable to carry out your agent’s choice, your physician must tell the agent and the agent can choose a new physician or provider.
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).
- A 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.
- A 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.
- A 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.
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,
- 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.
A Declaration for Mental Health Treatment is strictly limited in scope of treatments and in time.
- A 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.
- A Declaration is strictly limited in the length of time that it is effective:
- A 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.
An Advance Directive is strictly limited in scope to:
- Instructions about continuing or withholding life-sustaining treatment if you have a terminal condition (expected to die within six months), or
- Instructions about continuing or withholding life-sustaining treatment if you have an irreversible condition, you cannot care for or make decisions for yourself, and you are expected to die without life-sustaining treatment.
Note: The Medical Power of Attorney, however, is not limited to life-sustaining treatment. If your agent’s decision conflicts with your Advance Directive, the Advance Directive controls. If no Advance Directive exists, the agent’s decision controls.
A 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.