I want to allow another person to make medical decisions for me (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 when you cannot make decisions for yourself.

• 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 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. 

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.

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.