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What if I’m married? Do I still need to name an agent? (Medical Power of Attorney)

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.