No one can predict when an accident, illness, or other emergency might leave them unable to make their own medical decisions. A medical power of attorney ensures that your healthcare wishes are followed and spares your loved ones the burden of making critical decisions without guidance from you.
The bottom line: A medical power of attorney is a legal document that authorizes a trusted person to make healthcare decisions on your behalf if you become incapacitated. Creating one now protects your wishes and gives your family clarity during an already difficult time.
Key Takeaways
A medical POA authorizes an agent to make healthcare decisions on your behalf if you become incapacitated.
The document must be signed before two witnesses or notarized to be legally valid in Texas.
At least one witness must be a disinterested party, not a relative, heir, or healthcare provider.
Your agent cannot begin making decisions until your doctor certifies in writing that you are incapacitated.
You can revoke your medical POA at any time.
Without a medical POA, Texas law determines who makes decisions for you in a specific order of priority.
An experienced Killeen estate planning attorney can help you create a medical POA that reflects your exact wishes.
What Is a Medical Power of Attorney in Texas?
A medical power of attorney (POA), sometimes called a medical directive, is a legal document that authorizes a designated person to make healthcare decisions on behalf of someone who is unable to make those decisions for themselves.
There are two key parties in a medical POA:
The principal: the person to whom the medical POA applies
The agent: the person the principal has designated to make healthcare decisions on their behalf
A psychiatric advance directive can also be included with your medical POA, ensuring that your preferences for mental health care are honored if you are unable to voice them at the time.
How to Create a Legally Valid Medical POA in Texas
To create a legally binding medical POA in Texas, you must do one of the following:
Sign the document in the presence of two witnesses who also sign it, or
Have your signature notarized by a notary public who affixes their stamp.
By signing, you confirm that you have read and understood the disclosed information, which is a required element of this legal document.
The Disinterested Witness Requirement
If you choose the two-witness route, at least one witness must be a disinterested party, meaning they have no personal or financial stake in your medical or estate decisions.
The following people do not qualify as disinterested witnesses:
Anyone currently acting as your agent in a medical or durable POA, or the person you are naming as agent in the current document
Your spouse or any relative by blood or marriage
Your primary doctor or any of their employees
Your residential care provider or any of their employees
Anyone entitled to inherit from your estate or who has a claim against it
Choosing Your Agent
Your agent carries significant responsibility. They may one day be making life-altering medical decisions on your behalf. Choose someone you trust deeply.
Legal requirements for your agent:
Must be at least 18 years old
Cannot be your doctor or healthcare provider
Cannot be an employee of your doctor or healthcare provider unless they are your relative
Cannot be your residential care provider
Cannot be an employee of your residential care provider unless they are your relative
Practical considerations when choosing an agent:
Many people name their spouse as the agent, which can be an excellent choice, but there are factors to weigh. Making critical medical decisions under emotionally difficult circumstances may be more than a spouse can handle. Additionally, if you and your spouse divorce before your medical POA comes into effect, your former spouse will not serve as your agent.
Your agent should know and understand your wishes well, including any religious beliefs or moral principles that guide your healthcare preferences. If your medical POA does not specifically address a situation your agent faces, they will be left to decide what they believe you would want. When your medical POA does specify your wishes, your agent is required to follow them.
What Medical Decisions Can Your Agent Make?
Before making decisions on your behalf, your agent must consult with your medical provider and is entitled to review your medical and hospital records.
Your agent can make decisions regarding medical services, treatments, and procedures designed to diagnose or treat your physical or mental condition — with the following exceptions:
Abortion
Withholding care in order to provide pain relief or comfort
Commitment to a mental health facility
Electroconvulsive therapy and other forms of psychotherapy
You also have the right to add your own restrictions and further limit your agent's authority. As long as your agent acts in good faith and in accordance with the wishes expressed in your medical POA, they cannot be held legally responsible for those decisions.
When Does a Medical POA Take Effect?
Your medical POA goes into effect upon delivery to your named agent after you have signed it before two witnesses or had it notarized. However, your agent cannot begin making decisions until your doctor certifies in writing that you are unable to make medical decisions for yourself.
This means creating a medical POA does not affect your ability to make your own healthcare decisions while you are capable of doing so. If you later regain the ability to make your own decisions, your agent's authority ends automatically.
How to Revoke a Medical POA in Texas
A medical POA remains valid until it is revoked, until you regain decision-making capacity, or until it reaches an expiration date you set. If you set an expiration date but remain incapacitated when that date arrives, the document stays in effect.
You can revoke your medical POA at any time by:
Destroying the document
Signing a written revocation
Signing a new medical POA, which automatically supersedes the previous one
Simply informing your doctor or agent of your intention to revoke it
Once your doctor records your intention to revoke in your medical file, the revocation is established.
Does Your Texas Medical POA Apply in Other States?
Whether your Texas medical POA is valid in another state depends on that state's laws. Most states recognize healthcare directives from other states, though some impose additional requirements. Texas, for its part, honors medical POAs that were validly executed in other states.
What Happens If You Do Not Have a Medical POA?
Without a medical POA in place, Texas law determines who has the authority to make medical decisions on your behalf. The following people are recognized in order of priority:
Your spouse
Your adult children
Your parents
The living relative nearest to you
The person identified will have the authority to withhold or withdraw life-sustaining medical care. Without a medical POA, there is no guarantee their decisions will reflect your actual wishes, especially if they do not know what those wishes are.
Medical POA vs. Out-of-Hospital Do-Not-Resuscitate Order
These two documents are sometimes confused. The key difference is scope.
An out-of-hospital do-not-resuscitate order applies only outside a hospital setting, such as in an emergency transport vehicle, at an accident scene, or in a long-term care facility. It covers only the refusal of specific life-sustaining treatments in the event of respiratory or cardiac arrest, including:
Cardiopulmonary resuscitation (CPR)
Artificial ventilation
Advanced airway management
Transcutaneous cardiac pacing
Defibrillation
A medical POA has a far broader reach across a much wider range of medical decisions and settings.
If you have both documents and they conflict on a matter that occurs outside a hospital, the out-of-hospital do-not-resuscitate order prevails. If you do not have an out-of-hospital do-not-resuscitate order, your agent has the authority to make related decisions and could potentially execute one on your behalf.
Ready to Create Your Medical Power of Attorney in Killeen, TX?
Planning ahead gives you and your family peace of mind that is difficult to achieve any other way. Attorney Brett Pritchard at the Law Office of Brett H. Pritchard in Killeen, Texas, is ready to help you create a medical POA that reflects your wishes, along with a comprehensive estate plan to protect your future.
Call (254) 781-4222 or contact us online to schedule a FREE consultation today.
Frequently Asked Questions
What is the purpose of a medical power of attorney in Texas?
A medical POA authorizes a trusted person (your agent) to make healthcare decisions on your behalf if you become incapacitated due to accident, illness, or any other cause. It ensures your wishes are followed and spares your loved ones from making difficult decisions without guidance.
What makes a medical POA legally valid in Texas?
To be legally valid in Texas, your medical POA must be signed either in the presence of two witnesses who also sign the document, or before a notary public who affixes their stamp. At least one witness must be a disinterested party.
When does a medical POA go into effect?
The document takes effect upon delivery to your named agent after signing, but your agent cannot begin making decisions until your doctor certifies in writing that you are incapacitated. Creating a medical POA does not affect your own decision-making while you remain capable.
Can I revoke my medical power of attorney in Texas?
Yes. You can revoke your medical POA at any time by destroying the document, signing a written revocation, signing a new medical POA, or simply informing your doctor or agent of your intention to revoke it.
What happens if I become incapacitated without a medical POA in Texas?
Texas law will determine who makes medical decisions on your behalf, in this order of priority: your spouse, your adult children, your parents, and then the nearest living relative. There is no guarantee their decisions will reflect your actual wishes without a medical POA in place.
How is a medical POA different from an out-of-hospital do-not-resuscitate order?
An out-of-hospital do-not-resuscitate order applies only outside hospital settings and covers only specific life-sustaining treatments during respiratory or cardiac emergencies. A medical POA has a much broader reach across a wider range of medical decisions and settings.
How do I set up a medical power of attorney in Killeen, TX?
Contact an experienced estate planning attorney to draft a medical POA that reflects your wishes. Brett Pritchard at the Law Office of Brett H. Pritchard in Killeen, TX, offers FREE consultations and can help you create a complete estate plan. Call (254) 781-4222 or contact us online today.