Medical Powers of Attorney

A medical power of attorney is an instrument that allows a third party (an agent) to make any health care decision on the principal’s behalf that the principal could make if the principal were competent.  This power “kicks in” only if the principal’s attending physician certifies that the principal is incompetent.

 

Tex. Health & Saftey Code §166.164 provides the form for the medical power of attorney.  As a practical matter, and to ecourage reliance by third-party health care providers, few estate planners deviate from the statutory language. There are strict witness requirements–specically about certain classes of persons who cannot serve as witnesses to the medical power of attorney.

 

There are a few limits on the agent’s authority. Typically, the agent will not be able to consent to: voluntary inpatient mental health services; convulsive treatment; physchosurgery; abortion; or neglect of the principal through the ommision of care primiarily intended to provide for the principal’s comfort.  Tex. Health & Saftey Code §166.152.  Strictly speaking, the statutory medical power of attorney form does not authorize the agent to make living arrangments against the principal’s wishes–only a guardian of the person has that power.  Generally, however, the agent makes many decisions effecting the principal’s living arrangments, including placing the principal in a nursing home or temporary care facility.

 

Neither the agent nor the health care provider are liable for health care decisions made in good faith under the terms of the power of attorney.

 

The medical power of attorney is not automatically revoked upon the appointment of a guardian of the person.  Any designation naming the principal’s spouse as agent is, however, revoked by law upon divorce.