It happens all too frequently, a loved one has an accident, gets seriously ill, or is nearing the end of life and they and their families find it difficult to decide on whether to continue medical treatment and, if so, how much treatment is wanted and for how long. A useful legal document everyone should have is the Texas Medical Power of Attorney. In this article we will discuss what a Medical Power of Attorney can do in Texas and when and how it goes into effect to make health care decision-making easier. A probate attorney such as Austin probate lawyer Farren Smith can help with putting together a complete estate planning set of legal documents that includes a Will, Medical Power of Attorney and Statutory Durable Power of Attorney.
The Importance of a Medical Power of Attorney
Many factors can make medical decision-making complicated. Such factors include the patient’s age, the nature of the illness, the ability of medicine to sustain life, and the emotions families endure when their loved ones are sick and possibly dying.
When a loved one can no longer make decisions for himself he is considered legally incapacitated. If a person becomes incapacitated, someone, usually a family member, must step in and make health care decisions for that person. The best case is when the incapacitated individual prepared an advanced directive document known as a Medical Power of Attorney naming a trusted agent to make decisions concerning medical care on his behalf. This document is known as a Medical Power of Attorney or Durable Power of Attorney for Healthcare.
Without such a document families are left to piece together what the decisions would be regarding healthcare choices. If no directive exists, the patient, the family, and the physician may hold discussions about treatment options, including the length and invasiveness of treatment, chance of success, overall prognosis, and the patient’s quality of life during and after the treatment. The patient’s family and physician must make decisions based on what they think the patient would want.
The family may also be forced to start guardianship proceedings in court. Guardianship proceedings can be very expensive, time-consuming and stressful for family members. Having a Medical Power of Attorney in place avoids costly court intervention and ensures that the people making decisions are trusted agents and will act according to the person’s wishes.
Elements of a Medical Power of Attorney
A Medical Power of Attorney or Durable Power of Attorney for Health Care is also known as a health care proxy. A Medical Power of Attorney is a written legal document made and signed by a competent adult (the “principal”) that designates an agent or surrogate to act on a person’s behalf if he becomes unable to make healthcare decisions for himself. The individual chosen to be the agent can be a family member, friend or any adult the person trusts to make medical decisions for him. The Medical Power of Attorney must be signed before a notary public or two witnesses.
A Medical Power of Attorney goes into effect immediately after it is executed and is effective indefinitely unless it contains a specific termination date or is revoked by the principal. The agent has the power to make healthcare decisions on the principal’s behalf only when the principal’s attending physician certifies in writing in the medical record that the principal is incompetent. However, the agent may not make decisions on the principal’s behalf if the principal objects, or becomes competent.
In the Medical Power of Attorney the principal may limit the types of decisions the agent is allowed to make. The agent is obligated to follow the principal’s instructions when making decisions on his behalf. Unless otherwise stated, the agent has the same authority to make decisions about the principal’s health care as the principal would have had.
Because “health care” means any treatment, service, or procedure to maintain, diagnoses, or treat a physical or mental condition, the agent often has the power to make a broad range of health care decisions for the principal unless otherwise specified in the document. The agent may consent, refuse to consent, or withdraw consent to medical treatment, and may make decisions about withdrawing or withholding life sustaining treatment. However, the agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, abortion, or neglect of comfort care. A physician must comply with the agent’s instructions or allow the person to be transferred to another physician.
It is advisable to hire an attorney to help draft a Medical Power of Attorney so that the person has control over who will make decisions and ensure that his wishes will be met in the event he cannot speak for himself. If you have questions about powers of attorney, please contact Austin probate attorney Farren Smith for a consultation.
- Tex. Health & Safety Code