Medical Power of Attorney: Information and Answers to Common Questions
This article provides information about Medical Powers of Attorney. Specifically, it discusses what a medical power of attorney is, what it can do, and more. This article was written by Texas Legal Service Center.
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 (the principal) when you cannot make decisions for yourself.
- Here for situations where there might not be witnesses and the Medical Power of Attorney will be verified by a Notary Public.
- Here for situations where there will be two witnesses
If you are over 60 years of age or older, or if you are receiving Medicare you may call the Legal Hotline for Texans to speak to an attorney free of charge. Call (800) 622-2520 (Option 3).
A Medical Power of Attorney is one kind of durable power of attorney. A Medical Power of Attorney gives your agent the right to make health care decisions for you. A general durable power of attorney empowers the agent to make financial decisions and usually does not give the person the right to make decisions about health care.
The person you choose to make health care decisions on your behalf when you cannot is your “agent.” Any competent adult can be your agent, except:
Your physician or health care provider
An employee of your physician or health care provider (unless the employee is your relative)
- Your residential health care provider (a nursing home for example)
- An employee of your residential health care provider (unless the employee is your relative)
You should choose someone you trust to act according to your wishes. You want someone who has a good knowledge of your wishes (including your values, religious and moral beliefs) and agrees that your medical choices are in your best interest.
Your agent cannot make medical decisions for you unless you cannot make decisions for yourself. Your doctor must say, in writing, that you cannot make your own health care decisions. The doctor’s certification goes in your medical file. Your agent can only make medical decisions for you until you are able to make them again. You can revoke (cancel) your Medical Power of Attorney at any time.
Unless the Medical Power of Attorney limits the agent’s powers, they can make most medical decisions for you. But,
The agent cannot:
- Agree to hospitalize you for mental health services,
- Agree to convulsive treatment or psychosurgery,
- Agree to an abortion, or
- Refuse care that will keep you comfortable.
Health care decisions are agreeing to, or not agreeing to, medical procedures or services to diagnose or treat your physical or mental condition. Your agent has to talk to your doctors before making medical decisions. Your agent can see your medical and hospital records.
The Medical Power of Attorney begins when your doctor says in writing that you cannot make medical decisions for yourself. It lasts until:
- You are able to make your own medical decisions,
- You revoke (cancel) it,
- Complete a new Medical Power of Attorney picking a new agent , or
- Its expiration date (if there is one) arrives.
If the power of attorney expires when you are incompetent, it will stay in effect until you are competent or until you revoke it.
You have to sign your Medical Power of Attorney in front of two witnesses OR have your signature acknowledged by a notary public.
You also have to read a disclosure statement that explains what a Medical Power of Attorney does, and you have to sign a statement saying that you read and understood the disclosure statement.
As noted, the Medical Power of Attorney can be signed before a notary public without the need for witnesses.
Both witnesses must be at least 18 years old. And, one of the witnesses cannot be:
- Your agent,
- Your primary doctor or an employee of your primary doctor,
- Your residential care provider or an employee of your residential care provider,
- Your spouse or any relative,
- A person entitled to any part of your estate, or
- Any person who has a claim against your estate.
- A Medical
takes effect the instant you are declared incompetent. With both a Declaration of and Medical in place, your Medical agent will make health care decisions on your behalf so long as the is effective and until a judge signs a naming a for you.
- A Medical agent can act during the gap between incompetency and the time a names a , or longer if no is ever named for you.
- Naming an agent in a Medical can also save you money, because it can often help avoid the expense of a -ordered .
- A of the person takes time because the must be approved by a . If a approves a , the will then have sole authority to make health care decisions, unless the determines that the agent should continue.
In Texas, a living will is called a Directive to Physicians and Family or Surrogates. A Directive to Physicians tells your doctor the kinds of medical care that you want to receive and lists any types of medical procedures that you do not want to have done to you in case you become incapacitated. For example, if you do not want to be placed on a ventilator (artificial breathing machine), you can say that in a Directive to Physicians.
Many people choose to have a Directive to Physicians and a Medical Power of Attorney. If you have both and they conflict with one another, doctors will use the most recent one, the document executed later in time controls.
The main difference is the range of medical treatments the documents cover.
An Out-of-Hospital Do-Not-Resuscitate(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,
- 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 foris 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
Note: A Medical Power of Attorney agent, however, cannotto 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 forin 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 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.
A Medical Power of Attorney completed in Texas may or may not be valid in another state.
- A Texas Medical is only valid out-of-state if the other state’s laws allow it.
- The other state’s laws may limit what it covers even if it is allowed in that state.
If you are considering moving to another state, you should look up that state’s laws or talk with a lawyer in that state to determine if you need to update your Medical Power of Attorney.
Note: A Medical Power of Attorney (or similar document) that was validly executed in another state is valid in Texas, but only to the extent the document, agent, or treatment is allowed under Texas law.
You can revoke a Medical Power of Attorney even if you cannot make your own medical decisions. To cancel it, you can:
- Tell the agent, in person or in writing,
- Tell your doctor or residential care provider, in person or in writing,
- Do something that shows you intend to revoke the power, or
- Sign a new Medical Power of Attorney.
If your spouse is your agent, the Medical Power of Attorney automatically ends if you get divorced.