A medical power of attorney lets you choose someone to make health care decisions for you if you cannot. It is one of the most important documents in any estate plan, and one of the easiest to overlook.
This guide explains how the document works in Texas and how to choose the right person. It is general education, not legal advice for your situation.
What it is
A medical power of attorney is a legal document in which you (the principal) name an agent to make health care decisions for you. In Texas it is governed by Chapter 166 of the Health and Safety Code, which includes a statutory form. The document should follow that form closely, including its required disclosure statement.
Your agent can make most health care decisions you could make yourself. The statute lists a few exceptions, such as consenting to certain mental health treatments, so the form matters.
When it takes effect
Your agent's authority does not begin the moment you sign. It applies when your attending physician certifies in writing that you cannot make your own health care decisions.
Even then, your wishes still matter. The agent is expected to decide according to your known wishes, including religious and moral beliefs. If those are unknown, the agent decides in your best interests. Treatment also may not be given to you or withheld from you over your objection.
Why signing it correctly matters
Signing is where most home-made forms go wrong. Texas requires either qualified witnesses or a notary, and it sets specific rules about who may serve as a witness. Your agent, for example, cannot be one.
A document signed incorrectly can be questioned or rejected by a hospital at the very moment your family needs it. Because these mistakes are common and hard to fix in a crisis, we make sure the signing is done correctly as part of your plan.
Who can be your agent
Your agent must be an adult. Choose someone who is calm under pressure, who knows your values and who will speak up for you.
Texas law bars certain people from serving. While serving as your health care provider or your residential care provider, a person cannot act as your agent. The same is true of an employee of either one, unless that person is your relative.
Name at least one alternate. If your first choice is unavailable or unwilling, the alternate steps in. Many people also talk with their agent in advance, so the role is not a surprise.
How it differs from other documents
A complete plan usually includes several health and incapacity documents. They do different jobs.
- Medical power of attorney. Names a person to make health care decisions.
- Directive to physicians. Sets out your own wishes about life-sustaining treatment if you have a terminal or irreversible condition. It speaks for you, while the medical power of attorney names someone to speak for you. Many people sign both.
- Durable power of attorney. Names someone to handle financial and legal matters. It does not give authority over health care.
- HIPAA authorization. Lets doctors and hospitals share your medical information with the people you name. It helps your agent and family get information quickly.
Each document covers a different gap, which is why we look at them together as part of your estate planning.
Adult children and college students
Once a child turns 18, parents generally lose automatic access to medical information and decision-making. If a college student is hurt or ill, doctors may not be able to talk with you without legal authority.
A medical power of attorney and a HIPAA authorization let a young adult name a parent. It is a simple step that can matter a great deal in an emergency.
If you moved to Texas
Did you sign documents in another state? An out-of-state medical power of attorney may still be recognized, but forms and rules differ. Hospitals and providers are more comfortable with a document that follows Texas requirements. Read our moved to Texas estate plan guide for what to review after a move.
Changing or revoking it
You can revoke a medical power of attorney at any time, orally or in writing, by telling your agent or your health care provider, or by another act showing that you intend to revoke it. Signing a new medical power of attorney also revokes the earlier one.
If your agent is your spouse and the marriage ends, the agent's authority generally ends too, unless the document says otherwise. Because the form itself should not be altered, changes are made by signing a new document.
Keeping copies where they can be found
A document no one can find does little good. Give copies to your agent and alternates, share one with your doctor and keep the original somewhere safe but reachable. Tell your family where it is.
Review your documents after a major life change, such as marriage, divorce, a move or the death of a named agent.
Next step
Not just documents. A strategy for everything you've built. In your Alers Legacy Strategy Session, we look at your family, your health care wishes and who is best placed to speak for you.
Book your Alers Legacy Strategy Session. Se habla español.
Not sure where to start? Schedule a free 15-minute discovery call with our team.
FAQs
Does a medical power of attorney work if I am still able to decide?
No. It generally applies only after your attending physician certifies that you cannot make your own health care decisions.
Does a Texas medical power of attorney need to be notarized?
It needs either a notary or two qualified witnesses. Either method can work if the requirements are met.
Can I name more than one agent?
You name one agent and can name alternates who step in if the first cannot serve. Naming co-agents can lead to disagreement, so talk with an attorney first.
Is a medical power of attorney the same as a durable power of attorney?
No. The medical power of attorney covers health care decisions. A durable power of attorney covers financial and legal matters.
Can I change my medical power of attorney?
Yes. You can revoke it at any time and sign a new one.