What is a Medical Power of Attorney?

by Rania Combs on December 28, 2009

StethescopeA medical power of attorney is a document that allows you, the principal, to designate a trusted family member or friend to make medical decisions for you in the event you become unconscious or mentally incapable of making those decisions for yourself.

The person you designate to make medical decisions for you is called an agent. The agent is given broad authority to make any health care decisions you could have made if you were not incapacitated, unless you specifically restrict his or her authority.

Medical powers of attorney are not just for the elderly. Unexpected injuries or illness can occur at any age, so all adults should have one in place.

What Are the Requirements of a Medical Power of Attorney in Texas?

The medical power of attorney must be signed by you, in the presence of two witnesses, who must also sign the document. The statute provides that in lieu of signing in the presence of witnesses, you may sign your medical power of attorney and have your signature acknowledged before a Notary Public.

If you are physically unable to sign, another person may sign the medical power of attorney with your name, so long as it is done in your presence and at your direction.

Before signing your medical power of attorney, you must sign a statement indicating that you have received a disclosure statement and have read and understood its contents.

Does My Medical Power of Attorney Need to be Witnessed?

The medical power of attorney must be signed by two witnesses or acknowledged before a Notary Public.

If it is signed by witnesses, the witnesses must be competent adults. Also, at least one of the witnesses cannot be someone who:

  • has been designated by you to make health care treatment decisions on your behalf
  • is related to you by blood or marriage;
  • is a beneficiary of your estate;
  • has a claim on your estate;
  • is your attending physician;
  • is employed by your attending physician; or
  • is an employee of a health care facility in which you reside, if the employee is involved in providing direct care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.

In lieu of signing in the presence of witnesses, you may sign your medical power of attorney and have your signature acknowledged before a Notary Public.

When Does a Medical Power of Attorney Become Effective?

The medical power of attorney becomes effective immediately after it is executed and delivered to the agent.

It is effective indefinitely unless it contains a specific termination date, it is revoked, or the principal becomes competent.

If the medical power of attorney has a specific termination date, but you are incapacitated on that date, the medical power of attorney continues to be effective until you become competent.

When Does the Agent Have Authority to Act?

A medical power of attorney authorizes your agent to act on your behalf only after your attending physician certifies in writing and files the certification in your medical records that based on his reasonable medical judgment, you are incompetent.

Regardless of the existence of a medical power of attorney or the declaration of incompetence, the statutes specify that treatment cannot be given to or withheld from you if you object.

Can I Revoke a Medical Power of Attorney?

You can revoke a medical power of attorney by notifying either your agent or your health care provider, orally or in writing, of your intent to revoke.

The revocation will be effective regardless of whether your capacity to make health care decisions. You can also revoke a medical power of attorney by executing a new one.

If you are married and your spouse is your agent, a divorce will revoke the medical power of attorney unless you provide otherwise.

Return to Texas Wills and Trust Online home page →

{ 0 comments… add one now }

Leave a Comment

If you would like to add your perspective to this post or have a general question, please leave a comment. However, if you have a fact-specific legal question, please email me, or communicate with me through my secure client area. To do so, simply login if you are an existing client, or request an introductory conference if you are interested in becoming a new client.

Previous post:

Next post:

Read about Rania's law firm in...