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The Power of One – Getting the Medical Power of Attorney Right

“There is always a well-known solution to every human problem – neat, plausible, and wrong.”  H.L. Mencken, Prejudices, Second Series (1920)

There are a number of people who, in search of a legal form, will turn to the internet and download the first document that pops up for free.

That would work out pretty well if the law was not so darned picky. Take, for example, the Texas Medical Power of Attorney, an extremely important document that is on the “MUST HAVE” list for every living adult in Texas.

The Medical Power of attorney designates the person who will serve as your agent to make medical decisions for you when you cannot do so. It is springing power, meaning that it is only effective when your physician finds that you can no longer make reasoned decisions about medical treatment.

Texas law requires health and residential care providers who are aware of the existence of a Medical Power of Attorney to follow all of the terms of the document. If they cannot, then they have to notify the agent and allow time for your transfer to another facility or physician.

Having a valid Medical Power of Attorney can literally mean the difference between life and death.  Without one, you lose your opportunity to choose your agent and to leave specific instructions regarding the extent of the agent’s powers. Instead, the Consent to Medical Treatment Statute will fill the vacuum with a default list of people who are authorized to make decisions for you in a nursing home or hospital, starting with your spouse and ending with a member of the clergy. That does not work out very well if you are an atheist in the middle of an acrimonious divorce.

Or you could be left to the mercies of warring relatives. That practically guarantees you a one-way ticket to court and an appointed guardian.

With so much on the line, you might be tempted to quickly pull up a form and fill it out on your way to the hospital.

Big mistake. Texas law requires that the document be “substantially” in the form laid out in the statute.  Any deviation could render the entire document void. Use a backwoods form, or get creative with your hand-written changes, and you stand a very good chance of having the document, and your wishes, ignored completely.

Nor are you the only one at risk if you use a bad form. If your agent was smart, he or she would insist on the proper form being used. That is because the statute gives protections only to an agent acting under a valid form. An agent will not be subject to criminal or civil liability if the agent acted in good faith and was authorized to act by a valid Medical Power of Attorney. The agent also is not personally liable for any health care costs associated with his or her decision under the Medical Power of Attorney.

Doctors, hospitals and residential care providers also have a motive to make sure you use the correct form – they will not be subject to criminal or civil liability, and have not committed medical malpractice if they act in good faith or with reasonable care under a valid Medical Power of Attorney.

This is one document that you want to get right.

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