A Medical Power of Attorney (“MPOA”) is a document you use to name the person you want to make medical decisions for you in the event you are physically or mentally incapacitated. Because it is not terminated by your incapacitation and only becomes effective if you are incapacitated, it is both durable and springing. Under Texas Health and Safety Code §166.152, your agent cannot act until your attending physician certifies in writing that you are incompetent and files the certification in your medical records.
You may wonder why you would want an MPOA. Without one, you are allowing the legislature to decide who will make decisions about your healthcare if you are unable to do so. The legislature, in Texas Health and Safety Code §303.004, decided the specific order of the people who may consent on your behalf — spouse, adult child (if waiver of other children), a majority of adult children, and parents. You can imagine how this priority could create problems.
For example, a second marriage could cause family turmoil when the new spouse of the patient makes decisions without consulting the patient’s adult children from the prior marriage. An MPOA may also be valuable to person with an estranged relationship with the children or spouse. Many years ago, I represented a hospital in a situation in which an incompetent patient was legally married but had not seen his wife in over 10 years. His live-in girlfriend of many years did not have authority to make the decision to remove him from life support because under the law his wife was the one with the authority. The uncomfortable situation could have been avoided had the patient had an MPOA.
Further, it may come as a surprise to you that, without an MPOA, the person acting on your behalf cannot authorize the withholding or withdrawal of life support. However, they will be able to consent to life support treatment.
If you choose to draft an MPOA without an attorney, you should be aware of the pitfalls. The Texas legislature included a Medical Power of Attorney in the Texas Health and Safety Code §166.164, that must be used. The statute also requires you to sign the MPOA in front of a notary public or in front of two eligible witnesses who must also sign. Not just any person can serve as your witness. The Texas Health and Safety Code §166.154 prohibits certain people from being a witness, such as the person you name as your agent, a relative by blood or marriage, a person who will inherit upon your death, your attending physician or their employee, or a person who has a claim against you.
If you want your agent to make healthcare decisions for you, but not to have the burden of deciding about life support, then you may want to consider using a living will, which allows you to make the decision ahead of time.
Contact the Law Office of Hugh Spires, Jr. to discuss preparation of an MPOA that will be valid under Texas law. Our estate planning attorney travels within 50 miles of San Antonio, Texas or provides your documents through a secure web portal.