There is a new Medical Power of Attorney in town, and you need to know about it.
The theory behind a Medical POA is deceptively simple: you name an agent to make your medical decisions for you. The reality behind a Medical POA is anything but simple.
Your agent’s power is “springing” – in other words, the agent has power only when you are incapacitated. If you are walking around in perfect health, then the agent has no power. If you are under anesthesia and in a hospital operating room, then the agent has power. Once you are awake again, the agent loses the power. Your “incapacity” is official only when a physician certifies it.
For those times when the agent does have power, it is a lot of power. The agent can make decisions about life, death, and everything in-between. Texas law has only a few hard-and-fast limitations on the power: the agent cannot commit you to inpatient mental health services, consent to psychotherapy or an abortion, or neglect you by omitting needed care. You can limit your agent’s power in writing, but you cannot expand it.
When exercising all of this power, the agent is tasked with mimicking the decision you would have made. In other words, the agent is not supposed to substitute his or her values and beliefs for your values and beliefs. How does the agent know your values and beliefs? Hopefully, you would have already had some meaningful discussions with your agent. Absent direct knowledge, your agent is supposed to extrapolate the decision from what is known about your religious and moral beliefs.
In other words, it is a bit of a guessing game.
For those reasons, your agent should be someone you know well and trust. Not everyone is eligible to be named as an agent – you cannot name your health care provider and employees. You should not name co-agents (people who have to act together), but you should name at least one back-up agent in case your original agent cannot serve.
Your Medical POA has to be in writing. The Texas statute is very specific about the form. There is a new form for documents signed after January 1, 2018, found in section 166.164 of the Texas Health and Safety Code. Do not use another state’s form or a generic form like “Five Wishes.” Those are not permitted by the statute.
You have to sign the Medical POA in front of a notary or two witnesses. If you are signing it at the last minute from your hospital bed, be aware that your agent, your relatives, your beneficiaries and heirs, your physician, your creditors and the hospital employees cannot serve as witnesses.
Revoking a Medical POA is considerably easier – you can do that orally or in writing.
Before you sign your Medical POA, you should discuss it with your doctor or lawyer to make sure that you understand all of the ramifications. This document can literally mean life or death to you.
Hammerle Finley Law Firm. Give us a call. We can help.
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The information contained in this article is general information only and does not constitute legal advice.