In Texas, a person who wants to appoint someone else to make medical treatment decisions on his or her behalf can use a medical power of attorney. The person making the medical power of attorney is called the “Principal”. And the person appointed by the Principal to act on the Principal’s behalf to make medical decisions, is called the “Agent”. A medical power of attorney authorizes an agent to make medical treatment decisions on behalf of the principal when the principal is unable to make those decisions. A doctor must first certify in writing that the principal is “incapacitated”—unable to make medical treatment decisions for his or herself—for the medical power of attorney to be effective. Once the doctor certifies that the principal is incapacitated, then the agent can make the medical treatment decisions.
A medical power of attorney does not allow the agent to commit the principal to a psychiatric facility. A medical power of attorney does not allow the agent to consent to an abortion on behalf of the principal. A medical power of attorney does not allow the agent to move the principal to a residential care facility. If the agent wants to take these actions on behalf of the principal, the agent will need to apply to a court of competent jurisdiction and obtain authority from the court to make those decisions on behalf of the principal. A guardianship attorney can advise about the appropriate legal proceeding and assist an agent who wants to apply to the court for this kind of decision-making authority.
A medical power of attorney must be signed by the Principal and two witnesses. The medical power of attorney can also be signed by a notary in lieu of two witnesses.
An agent acting under a medical power of attorney is considered a fiduciary. An agent acting under a medical power of attorney has many fiduciary duties and could be held personally liable for violating his or her fiduciary duties. Although a medical power of attorney can be a very helpful tool for families needing to assist a loved one, a medical power of attorney can be easily abused by an unscrupulous agent. Principals with underlying medical conditions that cause physical or mental disability are particularly vulnerable to exploitation by self-interested and irresponsible agents.
Thus, it is important when making a medical power of attorney to consult with an estate planning attorney about who should act as an agent under the medical power of attorney, and if there should be any limitations on the agent’s decision-making authority under the medical power of attorney. An estate planning attorney with Law Office of Adriane S. Grace, PLLC can also assist you with executing and signing a medical power of attorney in accordance with Texas law.
