What is a Medical Power Attorney?

Medical Power of Attorney, also known as health care proxy, is a legal document that permits an individual to designate another person with the right to make medical decisions when they become incapacitated or unable to communicate. Essentially, a medical Power of Attorney is a document that names a trusted individual, the agent, to make healthcare decisions on behalf of another, the principal. The agent appointed has the right to make healthcare decisions such as medical treatment procedures, consent or refuse medical treatment, choosing healthcare providers, and end-of-life care.

Texas has specific legal requirements for creating a medical Power of Attorney. Chapter 166, Subchapter D of the Texas Health and Safety Code outlines these requirements, and they include:

• The principal must be of sound mind and capable of deciding on a medical Power of Attorney in Texas.
• The principal must understand the implication of granting the agent the legal right to make medical-based decisions on their behalf.
• The decision to create a medical Power of Attorney must be voluntary without undue influence or coercion.
• The Medical Power of Attorney must be documented in writing and signed by the principal in the presence of two adult witnesses not related to the principal by blood or marriage.
• Instead of signing in the presence of the witnesses, the principal may sign the Medical Power of Attorney and have the signature notarized.
• The agent must accept the responsibility of making medical decisions on behalf of the principal.

Why Would You Need a Medical Power of Attorney in Texas?

Medical Power of Attorney enables Texas residents to pre-select dependable individuals to represent them when illness or injury hinders their ability to make medical decisions for themselves. In addition, having a medical Power of Attorney in place helps safeguard against emergencies for persons frequently on the road. The document would ensure continuity and consistency in the principal’s medical care regardless of location.

The benefits of having a medical Power of Attorney in place in Texas include:

• Having a medical Power of Attorney in place ensures that the principal's preferences for medical treatment are followed.
• It appoints a single decision-maker, which ensures timely and prompt decision-making during emergencies or incapacitation.
• Medical Power of Attorney offers personalized medical care as the principal can specify their preference for treatment in advance.
• Medical Power of attorney provides legal protection for the principal and agent, as it clarifies the individual with the right to make medical decisions on the principal's behalf, preventing disputes.

The risks of not appointing a Medical Power of Attorney include:

• It delays access to healthcare. The absence of medical Power of Attorney may delay medical decisions in emergencies or when the individual suddenly becomes incapacitated.
• The lack of a designated healthcare proxy may lead to disputes among family members about the course of medical treatment.
• Where there is no medical power of attorney, the medical facility's treatment plan may not align with the individual's desires.
• Disputes arising from medical care received may require court intervention where no medical Power of Attorney is in place.

When does your medical POA take effect in Texas?

In Texas, the Medical Power of Attorney becomes effective immediately when the agent signs and receives the document. However, the agent can only begin making medical-related decisions on behalf of the principal once a medical practitioner certifies in writing that the principal is incapacitated or unable to make medical decisions themselves.

Per Section 166, 152(g) of the Texas Health and Safety Code, Medical Power of Attorney lasts until

• The medical practitioner determines that the principal is competent again
• The principal revokes the power of attorney
• The principal specified an expiration date on the Medical Power of Attorney, and that date has lapsed.

Per Texas law, the principal may specify a start and end date of the medical Power of Attorney. The document must reflect the wish of the principal, including the duration of the medical Power of Attorney. The following tips can help when determining the start and duration of a medical Power of Attorney:

• The document must specify when the agent's authority begins, whether upon signing the document, at incapacitation, or occurrence of a specific event
• The document must specify what constitutes incapacity
• The document should indicate the duration, limited or indefinite. Limited medical Power of attorney is valid for a specific period or at the commencement of a predetermined event. Indefinite medical Power of Attorney remains effective until revoked by the principal or death.

Regardless of the specified duration on the document, the following factors determine the duration of medical Power of Attorney:

• The principal revokes the agents right before the end date specified on the document.
• The principal is incapacitated at the end date stated on the document. In this instance, the agent continues to act in that capacity after the expiration date stated on the Medical Power of Attorney after the stated expiration date.
• The principal dies. The death of a principal before the expiration date specified on the document ends the medical Power of Attorney.
• Change in relationship dynamics between the principal and the agent. A breakdown in trust between both parties can influence the duration of a medical Power of Attorney. For instance, the agent is the principal's spouse but is currently filing for divorce.

How to Get Medical Power of Attorney in Texas

Per Texas law, creating a valid medical Power of Attorney begins with two competent adults of sound mind. Both parties must understand the consequences of agreeing. Furthermore, the medical Power of Attorney must be in writing and duly signed by the principal in the presence of 2 witnesses not related to the principal by marriage or blood. In addition, the document must specify the authority granted to the agent. Lastly, the appointed agent must accept responsibility as the principal’s medical decision-maker.

Section 166.164 of the Texas Health and Safety Code provides that persons seeking to create a medical Power of Attorney may complete the Medical Power of Attorney Designation of Health Care Agent Form. Per state law, there is no legal obligation to use the services of a legal representative to fill out and submit the document.

However, when giving an agent the right over one’s medical decisions, it is important to engage the services of a legal practitioner. The legal fees for creating Power of Attorney documents in Texas range from $200 to $500, depending on the principal’s location. Other costs associated with producing the document include notary fees, attorney consultation fees, document review fees, storage fees, and travel expenses.

Various resources are available to persons seeking to create a medical Power of Attorney in Texas.

• Online Services: Some websites offer free templates and guidance for creating legal documents, including the medical Power of Attorney forms.
• Legal Professionals: Engaging the service of a legal practitioner can ensure that the document is drafted to suit the principal's specific needs. Consulting with an attorney also ensures that the document complies with Texas law.
• State Resources: The Texas Health and Safety Code provides free sample forms on how to create and complete a legally binding medical Power of Attorney
• Community Resources: Some communities in Texas hold free legal clinics where individuals can get basic legal assistance with legal documents, including medical Power of Attorney
• Educational Resources: There are books and publications on creating valid medical Power of Attorney documents available across local libraries in Texas

How to write Medical Power of Attorney in Texas -

Medical Power of attorney drafted in Texas must comply with state laws and reflect the principal's desire. Texas law provides a sample form to draft the medical Power of Attorney document. The form includes required and optional fields. The following information is required to process the document and must be included in the form for it to be legally binding on both parties:

• The principal's identification, including their full name and contact address
• The details of the agent. Full name, address, and contact information
• The authority granting the agent the right to make medical decisions on the principal's behalf
• The limitations on the decision-making abilities of the agent
• The duration of the Power of Attorney rights
• The date the document becomes effective
• Signature and date of the principal, agent, and two witnesses

The following are optional when writing a medical Power of Attorney document.

• Designating alternate agents
• Additional witnesses beyond the state-approved minimum of two
• Notarizing the document
• Statement regarding the principal's right to revoke the medical of Attorney
• Statement regarding the principal's preference for life-sustaining treatment, organ donation, or end-of-life care

To ensure that the Power of Attorney form is completed accurately, the principal must ensure:

• Complete understanding of Texas law on creating medical Power of Attorney
• Gather relevant information to complete the form correctly
• Read the instructions to understand the requirements
• Consult legal practitioners for advice
• Fill the form accurately and legibly
• Read through the form, checking for accuracy and completeness
• Date and sign the form in the presence of witnesses

Executing and recording a medical Power of Attorney ensures the legality and effectiveness of the document. Upon completing the form, the principal must distribute copies of the document to the agent, healthcare providers, and other parties involved in their medical care. The principal must then retain the original copy of the document and store it in a safe location. Recording a Power of Attorney document requires the principal to fill the document with the County Clerk's Office. However, it is not a practice in Texas, albeit the Texas Estate Code (formerly probate code) allows for the voluntary recording of certain documents, including Power of Attorney, with the County Clerk’s Office.

How often must I update my Medical power of attorney?

The Texas Health and Safety Code does not specify how often the medical Power of Attorney document may be updated. Therefore, the principal may update the document at will to reflect their current wishes, provided it is determined that the principal is competent when updating the Medical Power of Attorney. Generally, a medical Power of Attorney may be reviewed or updated every 3-5 years. Principals who need to update the Medical Power of Attorney may revoke the existing document before creating or updating a new medical Power of Attorney document.

The following factors may necessitate updating the Medical Power of Attorney.

• The agent appointed dies or becomes incapacitated and unable to carry out their responsibility to the principal.
• Change in life circumstances such as marriage, to designate the spouse as the agent or divorce, to remove a spouse as the agent
• There is a disagreement between the principal and the agent
• The agent is incarcerated or under investigation
• The principal moved to another state after executing the Medical Power of Attorney.
• The principal lacks confidence in the agent’s ability to handle future medical decisions.

Reviewing and updating the medical Power of Attorney to reflect the principal's current medical needs is essential. The principal may adopt the following practices when reviewing or updating the Power of Attorney:

• The principal may establish a schedule to review their medical needs periodically. Significant health challenges may require updating the Medical Power of Attorney.
• Keeping up to date with state laws on medical Power of Attorney. Some state laws or court rulings may necessitate the review and update of the document.
• Seek professional guidance from licensed legal practitioners when unsure if the medical Power of Attorney requires an update.

Who Should be Selected as the Agent for this type of PofA?

When selecting an agent for the medical Power of Attorney, the principal must consider several qualities to ensure that the agent is suitable to make medical-related decisions on their behalf. Some key attributes to look out for include trustworthiness, availability, assertiveness, clear communication skills, ability to handle stress, and accessibility of the agent.

Per Texas law, the requirements for selecting an agent for a medical Power of Attorney include:

• Legal Capacity: The agent must be 18 years and older and of sound mind
• Conflict of Interest: The agent should be able to represent the principal fairly without compromise
• Understanding the Principal’s Wishes: The agent must understand the principal's medical wishes, values, and preferences
• Medical Knowledge: While the agent may not have medical expertise, the law recommends that the agent possess basic knowledge of medical terminologies and procedures

There must be trust and communication between the principal and the agent. Trust ensures that the agent will honor the principal's wishes. In addition, effective communication ensures that the agent fully understands the principal’s preferences and beliefs and will carry them out accordingly.

Who Can Be an Agent?

Per Texas law (Health and Safety Code Sec. 166.164.), an agent must be 18 years of age or older or have the disabilities of a minority removed if they are under 18. An agent should also be someone the principal knows and trusts. If a principal selects a health care provider such as a physician as an agent, the physician has to act as the agent or health care professional but not as both. It is important to select trustworthy and capable agents as they will have the power to make a broad range of healthcare decisions, some of which the principal’s life may depend on.

Can there be More than One Agent?

Yes, per Texas House Bill 2180, a medical power of attorney principal can appoint two or more co-agents. Depending on the structure of the power of attorney, the co-agents can have the power to make medical decisions concurrently on behalf of the principal or independently unless the power of attorney states otherwise.

Advantages of having multiple agents in Texas include:

• Having multiple agents allows the principal to have a backup if a quick decision for their health is needed but the primary agent is not available to make decisions due to travel or sickness
• Multiple agents can combine their skills and expertise in making decisions on behalf of the principal
• Having multiple agents can help resolve a health difficult decision for the family that may have led to a deadlock on the right decision to make

Disadvantages of having multiple agents in Texas include:

• Multiple agents increase the possibility of disagreements in decision-making. This can cause delays in crucial medical decisions.
• If the multiple agents are members of the principal’s family, critical medical decisions can create tensions or expose family conflicts.
• If the medical power of attorney requires joint decision-making from agents, disagreements can lead to a stalemate in making time-sensitive medical decisions.

Texas principals who opt for multiple agents for their medical power of attorney should consider the following procedures to specify the roles and responsibilities of the agents:

• Agent Structure: Principles should consider using a joining decision-making agent structure or one in which each agent can make the required decision independent of the other agent or agents.
• Specify Authority levels and Specific Tasks: The principles should clearly outline which task is to be handled by which agent and whether a decision from one agent requires the agreement of another agent or agents.
• Dispute Resolution: Ensure that a dispute resolution process is decided upon ahead of potential agent disputes. This could involve a majority vote by one of the agents or a neutral family member who helps with mediation.

What decision-making power does the Medical P of A grant the agent?

In Texas, the medical power of attorney grants decision-making powers to the agent by the principal when the principal is in a position where they cannot make important health decisions for themselves. Positions of incapacitation include being in a coma, mental illness, Alzheimer's disease, or being in a state where the partner is unable to communicate. Examples of decisions that an agent may be empowered to make under a medical power of attorney include:

• Accessing the medical records of the principal to make informed decisions
• Consenting to, withdrawing consent, or refusing almost any type of medical procedure (including surgeries, medications, or other life-sustaining treatments) or treatment for diagnoses, treatment, or for maintaining physical or mental health
• Consultations with healthcare providers on the principal's condition and treatment options

The Principal's agent is not permitted to authorize certain medical treatments and procedures such as:

• Abortion
• Comfort care and
• Mental health-related treatments

Persons opting to use the power of attorney in Texas should consider the following relative to their agent’s decision-making:

• Level of Care: Applicants should outline their preference for certain care situations, such as requiring life-saving measures over comfort care.
• Specific Treatments: Applicants should clearly state their position on treatments they may have strong feelings about, such as blood transfusions, dialysis, and cardiopulmonary resuscitation (CPR).
• Advanced Directives: Applicants should consider using advance directives to detail specific instructions for various scenarios.
• Religious beliefs: Applicants whose religious beliefs determine their medical decisions should factor these into their advanced directives.
• End-of-life care: Applicants should state clearly their wishes considering withholding or withdrawing life support in terminal situations.
• HIPAA Authorization: Remember to include HIPAA authorization (the Health Insurance Portability and Accountability Act) so the agent can access medical records.

Can the Medical P of A be revoked?

Yes, the medical power of attorney can be revoked in Texas. Section 166.152(g) of the Texas Health and Safety Code refers to the end of the power of attorney due to it being revoked. The Medical power of attorney can be revoked in the following ways:

• The principal opting to revoke the power of attorney by informing the agent or the health care provider
• The principal executing a new power of attorney. Executing a new power of attorney revokes a previous one.
• Where a spouse is the agent for a medical power of attorney, a divorce nullifies that spouse as the agent and revokes the medical power of attorney.
• At the arrival of an expiry date for the medical power of attorney, if the principal lists a date

To properly revoke a medical power of attorney, the decision must be adequately communicated to the parties involved. Failure to communicate properly during the process can lead to legal complications.

How Do I Revoke a Power of Attorney in Texas?

The circumstances of a person who has been granted a power of attorney may change and may lead to the need to revoke the power of attorney previously granted. To revoke the power of attorney in Texas, the steps are as follows:

• Draft a formal revocation of power of attorney document
• Sign and notarize the power of attorney revocation document
• Inform the agent and other parties of the revocation
• Record the revocation with applicable government offices
• Destroy the original copy/copies of the original power of attorney document

Note that revoking the power of attorney in Texas requires consulting with a legal professional to help handle the process correctly. The revocation document should also show clarity and precision, and the applicant should act swiftly to notify the involved parties.