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Medical Power of Attorney

What is a Medical Power of Attorney?

A Medical Power of Attorney is a legal document by which you appoint one or more persons (your "Agents") to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. You have the right to make health care decisions for yourself as long as you are able to do so; your Agent's authority does not begin until your doctor certifies that you lack the capacity to make your own health care decisions.

You can give your Agent complete authority to make medical decisions, or you can grant limited authority. However, your Agent may not under any circumstances consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A Medical Power of Attorney is "durable," meaning that it will remain effective even when you are incapacitated (substantially unable to provide food, clothing, or shelter for yourself, to care for your physical health, or to manage your financial affairs), but terminates upon your death. You have the right to revoke your Medical Power of Attorney at any time.

Who can act as my Agent?

The person you appoint as agent should be someone you know and trust. The person must be 18 years of age or older, or a person under 18 years of age who has had the disabilities of minority removed. If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital nursing home, or residential care home, other than a relative) that person has to choose between acting as your Agent or as your health or residential care provider; the law does not permit a person to do both at the same time. You should inform the person you appoint that you want the person to be your Agent. You should discuss the Medical Power of Attorney with your Agent and your physician, and give each a signed copy.

Do I need a Medical Power of Attorney for my spouse to speak for me?

If you do not have a Medical Power of Attorney, certain adults will have authority to make your medical decisions on your behalf if you are unable to do so yourself. In order of priority, these persons are:

  1. Your spouse
  2. An adult child
  3. Your parents
  4. An individual identified to act on your behalf before incapacity
  5. Your nearest living relative
  6. Clergy

Nevertheless, a Medical Power of Attorney gives you greater flexibility because it allows you to designate other people (such as a trusted friend) to make decisions for you, to change the order of preferred agents, to exclude people whom you do not trust to make such decisions, and to require that multiple people agree before a decision can be made.

If you do much traveling, please bear in mind that this rule applies in Texas only. The laws of other states may be different, and your spouse may be required to have written authority from you to act on your behalf in those jurisdictions.

How does a Medical Power of Attorney differ from a Directive to Physicians?

A Medical Power of Attorney and a Directive to Physicians are completely unrelated instruments.

A Medical Power of Attorney authorizes someone to make medical treatment decisions for you when you are unable to make those decisions for yourself. It is used in situations where you are not imminently and irreversibly terminal, but rather you are simply unable to make your own decisions because you are unconscious or otherwise mentally impaired.

The Directive to Physicians is much more narrow in scope: it applies only when your physician determines you are expected to die within a short time regardless of treatment, or that you are permanently unable to care for yourself and will die without life-sustaining treatment.

What information do you need to prepare a Medical Power of Attorney?

Please download our Estate Plan Worksheet.

Concluding Remarks

We hope you find this information helpful. Please call the Bell County law firm of Roberts & Roberts if you have additional questions regarding Medical Powers of Attorney or other estate plan issues.

Roberts & Roberts, LLP