There may come a time when a person loses the ability to communicate his or her health care decisions.
Whether the person loses capacity as a result of an accident, disease, or old age, it can be a difficult time for everyone involved.
To ease the emotional stress of these types of situations, Texans should consider completing a medical power of attorney.
Texans should consider completing a medical power of attorney to ease the emotional stress of these situations.
At Massingill, we help individuals and businesses
What Is a Medical Power of Attorney in Texas?
A Texas medical power of attorney (POA) is a legal document that authorizes a person (the agent) to make medical decisions on behalf of someone else (the principal) when they are incapable of doing so.
A medical POA in Texas is sometimes referred to as an advance directive.
How Do You Get a Texas Medical Power of Attorney?
To create a medical power of attorney, Texas law requires that you either sign the document in front of two witnesses or have a notary public acknowledge your signature.
Your signature is confirmation that you read and understand the information in the disclosure statement, which is a required part of the medical power of attorney.
A medical POA can also include a psychiatric advance directive (PAD).
This type of medical power of attorney authorizes Texas mental health treatment if you are unable to make those decisions yourself.
Creating a POA or PAD well before a crisis can give you a sense of security that you will be protected in the event of a serious medical or mental health emergency.
Consult with a Texas estate planning lawyer today to learn the nuances of how Texas estate planning laws can impact your case.
What Makes a Medical Power of Attorney Valid in Texas?
When creating your medical power of attorney, you need to know that a medical power of attorney needs to be signed and may need to be notarized.
The requirements for a POA to be valid in Texas include:
- The document was signed by you in the presence of two witnesses, and the witnesses also signed the document; or
- The document was signed by you in the presence of a notary public.
It is important to note that if you choose to have your POA signed by witnesses instead of signed by a notary, those witnesses cannot be interested parties.
This means that you cannot use your spouse and your sister as your only witnesses to your medical power of attorney in Texas.
Mental health care providers, doctors, nurses, and dependent children may also not qualify, depending on the circumstances.
Texas law states that witnesses may not include:
- Someone related to you by blood or marriage;
- Your doctor or one of their employees;
- A direct beneficiary of your estate or someone with a claim on your estate;
- An employee of a healthcare facility where you live; or
- Someone currently acting as your agent under a health care directive or durable power of attorney.
An experienced estate planning attorney can guide you through meeting all of the requirements.
Contact our office today if you are ready to discuss crafting a medical POA.
Who Can Witness My Medical Power of Attorney in Texas?
Any competent adult may witness a medical power of attorney. However, the following persons cannot be one of the witnesses:
- Your agent,
- A person related to you by blood or marriage,
- A person who could inherit a portion of your estate,
- A person who has a claim against your estate,
- Your doctor or one of your doctor’s employee’s, or
- A health care provider or their employee at a health care facility where you’re a patient.
Remember, you also have the option to sign your medical power of attorney in front of a notary public.
Who Can Serve as My Agent?
Anyone 18 years or older can serve as your agent, except for the following persons:
- Your doctor or other heath care provider
- An employee of your doctor or health care provider, unless that person is your relative
- Your residential care provider
- An employee of your residential care provider, unless that person is your relative
If you designate your spouse as your agent and later divorce, your spouse is no longer the agent.
When selecting an agent, choose someone you trust. Healthcare agents must make medical decisions per your instructions and in accordance with your wishes, which includes your religious and moral beliefs.
However, if you do not have instructions on how to handle a certain situation, the agent must make the decision based on what the agent thinks you would want.
This is quite a significant amount of responsibility.
What Medical Decisions Can My Agent Make for Me?
Your agent can make almost any medical decision you could. However, your agent cannot consent to the following:
- Committing you to a mental health institution;
- Convulsive treatment or psychotherapy;
- An abortion; or
- Withholding care intended to provide comfort.
Keep in mind that you can limit the agent’s decision-making authority within your medical power of attorney.
When Does the Texas Medical Power of Attorney Go into Effect?
The Texas medical power of attorney goes into effect immediately once you sign the document and deliver it to your agent. However, the agent can make healthcare-related decisions only once your doctor certifies in writing that you are unable to decide for yourself.
Up until that point, you have complete control over your own medical decisions. If you are deemed incompetent but later regain competency, then your agent loses the authority to make health care decisions for you.
Can I Revoke My Medical Power of Attorney?
Your medical power of attorney lasts until it is revoked (i.e. canceled), you become competent, or upon a set expiration date.
If at the specified termination date you are incompetent, the medical power of attorney remains in effect until you become competent or revoke it.
You can revoke it at any time. To revoke a medical power of attorney in Texas, you can do any of the following:
- Destroy the document;
- Sign a new medical power of attorney;
- Sign a written revocation; or
- Tell your agent or doctor that you intend to revoke your medical power of attorney.
A written or oral revocation takes effect once your doctor is made aware and records the revocation in your medical file.
Is My Texas Medical Power of Attorney Valid in Another State?
A medical power of attorney executed in Texas is only valid in a different state if that state allows it. Under Texas law, a medical power of attorney that is validly executed in another state has the same effect in Texas.
What Happens If I Don’t Have a Texas Medical Power of Attorney?
Unfortunately, not everyone has enough time to create a medical POA before a crisis strikes.
If you are unable to make your own health care decisions and you do not have a medical power of attorney, under Texas state law, the following persons (listed in priority) will make decisions for you:
- Your spouse,
- Your adult children,
- Your parents, or
- Your nearest living relative.
These people will have the decision-making power to withhold or withdraw life-sustaining treatment. In theory, all medical decisions must be based on what your wishes and desires might be.
In reality, the only way your loved ones will know your wishes is if you have a medical power of attorney in place to help guide them.
The sooner you are able to speak with an estate planning lawyer and craft an advance directive, the better off you and your loved ones will be.
Contact a Texas Estate Planning Attorney at Massingill Today
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