I received an email this week from someone whose uncle recently suffered several strokes and became incapacitated as a result. He didn’t have a Medical Power of Attorney. The nephew asked if it was possible to obtain the Medical Power of Attorney at this point to make medical decisions for him.
A Medical Power of Attorney grants a person you choose the power to make important medical decisions for you if you become incapacitated. However, you must sign the document before you become incapacitated. An incapacitated individual cannot grant that power.
However, if you become incapacitated and do not have a Medical Power of Attorney, a family member may still have the power to consent to medical treatment on your behalf.
Who Can Consent to Medical Treatment Without a Power of Attorney?
Section 313.004 of the Health and Safety Code provides that if an adult patient of a hospital is incapacitated, an adult can act as a surrogate. In the order of priority, the following people can consent to treatment:
- Your spouse.
- Your adult child, with the waiver and consent of all other qualified adult children.
- The majority of your children.
- Your parents.
- An individual clearly identified to act on your behalf before you became incapacitated, your nearest living relative, or a member of the clergy.
So Why Bother Having a Medical Power of Attorney?
At first glance, the statute seems to cover all the bases. If I were incapacitated, I would want my husband making important medical decisions on my behalf. And because my children are minors, my parents would be my next choice.
But what if:
- You and your spouse are involved in a serious accident in which you are both incapacitated?
- Or if you are a single parent with minor children, and are estranged from your parents?
- How about if you’re engaged to be married and would prefer your fiancé, rather than your parents, make medical decisions on your behalf?
- Or if you’d prefer that your mother, rather than your estranged father, make medical decisions?
- What if you’re part of an untraditional family and would prefer your partner to make important medical decisions rather than members of your family?
- Or you’d like two or more people to make decisions jointly?
Get the idea?
In theses situation and many others, having a Medical Power of Attorney in place is the only way to ensure that the person you choose will be able to make medical decisions on your behalf.