Medical Power of Attorney

Information for Patients, Physicians, and Providers

General Information  

The full advance directives statute is at Texas Health and Safety Code, Chapter 166. All legal citations herein are to that chapter.

December 2018

Medical Power of Attorney Form   


Definitions

  •  Physician means a physician licensed by the Texas Medical Board; or a properly credentialed physician who holds a commission in the uniformed services of the United States and who is serving on active duty in this state. §166.002(12)
  • The agent is the adult to whom authority to make health care decisions is delegated under a medical power of attorney. §166.151(2)
  • The principal is the adult who executes a medical power of attorney. §166.151(4)
  • Providers are (a) health care providers — individuals or facilities licensed, certified, or otherwise authorized to administer health care, for profit or otherwise, and includes physicians, and (b) residential care providers — individuals or facilities licensed, certified, or otherwise authorized to operate, for profit or otherwise, a residential care home.§166.151(3), (5)

What is a medical power of attorney?
It is a document, signed by a competent adult, i.e., “principal,” designating a person who the principal trusts to make health care decisions on the principal’s behalf should the principal be unable to make such decisions. The individual chosen to act on the principal’s behalf is referred to as an “agent.”

When does the medical power of attorney go into effect and how long is it effective?
It is effective immediately after it is executed and delivered to the agent. It is effective indefinitely unless it is revoked or the principal becomes competent. The document may contain a termination or expiration date, but if on that specified date the principal is incompetent, the power of attorney continues to be effective until the principal becomes competent unless it is revoked. §166.152(g).

When does the agent have the right to make health care decisions on the principal’s behalf?
An agent may make health care decisions on the principal’s behalf only if the principal’s attending physician certifies in writing that the principal is incompetent. The physician must file the certification in the principal’s medical record. §166.152(b).

Is the agent obligated to follow the principal’s wishes?
Yes. An agent must, after consultation with the attending physician and other health care providers, make a health care decision according to the agent’s knowledge of the principal’s wishes, including the principal’s religious and moral beliefs. If the agent does not know the principal’s wishes, the agent must make the decision according to the agent’s assessment of the principal’s best interests. §166.152(e)

What health care decisionmaking power does the medical power of attorney grant to an agent?
Under a medical power of attorney, an agent is given wide latitude when consenting to health care on the principal’s behalf. This could include any treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition. An agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. However, an agent cannot consent to:  

  • Commitment to a mental institution,
  • Convulsive treatment,
  • Psychosurgery,
  • Abortion, and
  • Neglect of comfort care. §166.152(f)

And in the medical power of attorney document itself, the principal may limit the agent’s decisionmaking authority.

How is the medical power of attorney revoked?
A medical power of attorney may be revoked by notifying either the agent or the principal’s physician or provider orally or in writing, of the principal’s intent to revoke. This revocation will occur regardless of the principal’s capacity to make health care decisions. Further, if the principal executes a later medical power of attorney, then all prior ones are revoked. Finally, if the principal designates a spouse to be the agent, the medical power of attorney is automatically revoked if the principal’s marriage to the agent is dissolved, annulled, or declared void (unless the document provides otherwise). §166.155

What assurance is there that the principal understands the consequences of signing a medical power of attorney?
The medical power of attorney form itself contains important legal disclosures about the significance of a medical power of attorney. The disclosures urge the principal to understand the implications of signing a medical power of attorney. §166.164.

Do I need a medical power of attorney?
There is a chance in your lifetime that you may be seriously injured, ill, or otherwise unable to make decisions regarding health care. If this should happen, it would be helpful to have someone who knows your values and in whom you have trust to make such decisions for you.

Who should be selected as an agent?
The agent should be someone knowledgeable about your wishes, values, and religious beliefs, and in whom you have trust and confidence. In the event your agent does not know of your wishes, that agent should be willing to make health care decisions based upon your best interests.

Can there be more than one agent?
There may be alternate agents. Although you are not required to designate an alternate agent, you may do so. The alternate agent(s) may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act. §166.164

Who can be an agent?
Anyone may act as an agent other than the following:

  • The principal’s physician or health care provider, 
  • An employee of the physician or health care provider unless the person is a relative of the principal,
  • The principal’s residential care provider, or
  • An employee of the principal’s residential care provider unless the person is the principal’s relative. 

If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time. §166.164

How can you obtain a medical power of attorney form?
You may contact the Texas Department of Aging and Disability Services; your local hospital, long-term care facility, physician, attorney, or a state health organization such as the Texas Conference of Catholic Health Facilities, Texas Medical Association, Texas Hospital Association, Texas Health Care Association, orTexas Association of Homes for the Aging.

Do you need a witness?
You may sign the medical power of attorney and have your signature acknowledged before a notary public, or you may sign it in the presence of two competent adult witnesses, who then must also sign it. At least one of the adult witnesses must not be:

  • Designated by the principal to make a health care decision on the principal’s behalf; 
  • Related to the principal by blood or marriage;
  • The principal’s attending physician or an employee of the attending physician;
  • Entitled to a part of the principal’s estate;
  • A person having a claim against the principal’s estate;
  • An employee of a health care facility in which the principal is a patient if the employee is providing direct care to the principal; or
  • An officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility. §166.154

What is the difference between a medical power of attorney and a directive to physicians?
The directive to physicians is a document that is limited in scope, addressing only the withholding or withdrawing of medical treatment for those persons having a terminal or irreversible condition. The medical power of attorney is broader in scope and includes all health care decisions with only a few exceptions. The medical power of attorney does not require that the principal be in a terminal or irreversible condition before the principal’s agent can make health care decisions on the principal’s behalf.

Does a person need a lawyer to execute a medical power of attorney?
No, a lawyer is not necessary to execute a medical power of attorney. §166.164 

NOTICE: The Texas Medical Association provides this information with the express understanding that (1) no attorney-client relationship exists, (2) neither TMA nor its attorneys are engaged in providing legal advice, and (3) the information is of a general character. This is not a substitute for the advice of an attorney. While every effort is made to ensure that content is complete, accurate and timely, TMA cannot guarantee the accuracy and totality of the information contained in this publication and assumes no legal responsibility for loss or damages resulting from the use of this content. You should not rely on this information when dealing with personal legal matters; rather legal advice from retained legal counsel should be sought. Any legal forms are only provided for the use of physicians in consultation with their attorneys. 

Permission is granted to reproduce this document.

Last Updated On

May 06, 2019

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