Do you, your spouse, your parents, or another loved one need a Medical Power of Attorney? I wish there were a simple answer to that question, but like so many things, the answer is . . . maybe.
A Medical Power of Attorney is a critical part of an individual’s incapacity plan and estate plan. The fact is that if you live long enough, there will come a time when you are simply unable to make your own medical decisions. We all hope that this will not happen to us, but as the population ages, more and more people find themselves with diminished capacity, depending on family and friends to make the appropriate decisions for them. Sadly, there are instances where the person that comes forward to make decisions for you may not put what is in your best interests first. Maybe they are not an appropriate person to make decisions for you. Sometimes this can lead to exploitation and abuse. To choose who will make decisions for you, you should consider executing a Texas Medical Power of Attorney. An important thing to point out is that considering and executing a Medical Power of Attorney requires advanced planning; it is an important legal document with very serious effects that may impact your healthcare directly. After consulting with an attorney, it is important to execute a Medical Power of Attorney prior to actually needing a it because once the actual need for the power of attorney arises due to incapacity or a medical condition, it is often too late.
What exactly is a Texas Medical Power of Attorney?
Simply stated, when properly prepared and executed, a Texas Medical Power of Attorney is a written legal document that identifies the person or persons (Agent or Agents) that you (the Principal) have selected to make medical decisions for you if you can’t make medical decisions for yourself.
The typical Texas Medical Power of Attorney will (1) identify the Principal, (2) identify the Agent(s), (3) outline any Restrictions on the Agent’s authority, (4) outline and Limitations of the Medical Power of Attorney, (5) designate the duration of the Medical Power of Attorney, (6) revoke prior Agent Designations, (7) contain a disclosure statement, and (8) may contain a HIPAA release.
- The Principal. The Texas legislature has defined “principal” as an adult who executed Medical Power of Attorney. Under Texas law, an adult means a person 18 years of age or older or a person who has had the disabilities of minority removed. In simple terms, the Principal is the person signing Medical Power of Attorney designating another person to make medical decisions for them.
- The Agent. Similarly, the Texas legislature has defined “agent” as an adult to whom authority to make health care decisions is delegated under a Medical Power of Attorney. Agents are the trusted individuals that you choose and designate to make health care decisions for you if you are unable to make them for yourself. Choosing the right person or persons is a very important decision. The individual selected should be familiar with your wishes, including any religious values, moral beliefs, or personal beliefs that may affect or impact the medical treatment that you wish to receive. The Agent is charged with the duty to make decisions on your behalf based on the Agent’s understanding of your wishes. If the Agent does not have an understanding of or any knowledge of your wishes, then the Agent is charged with making decisions that she believes to be in your best interest. It is important to name an Agent that is someone you know and trust.
You may name a single individual as Agent; you may name multiple co-Agents to serve together, or you may name a series of Agents to serve in succession. It is important to discuss selection of your Agent(s) with the Agent as well as with a licensed Texas attorney.
- Restrictions. In some cases, it is appropriate to outline and specify restrictions that you desire to place on Agent named in the Medical Power of Attorney. Perhaps there are specific treatments or admissions to facilities that you want to prohibit the agent from authorizing. Or maybe there are personal views that you wish to memorialize in your Medical Power of Attorney. Any such restrictions should be discussed with a licensed Texas attorney so that the restrictions can be properly included in your Medical Power of Attorney.
- Limitations. Similar to the restrictions discussed above, you may wish to outline limitations on the decision-making authority of your Agent. Typically, a Texas Medical Power of Attorney includes a statement requiring agents to follow valid Advanced Directives (Living Wills) and direct physicians to comply with valid Advanced Directives (Living Wills). Like the restrictions section, the limitations can be tailored to your specific wishes.
- Duration. The Texas Medical Power of Attorney is typically effective from the date of execution for an indefinite period of time. The principal may, however, indicate a specified period of time during which the Medical Power of Attorney is effective and after which the Agent’s authority terminates. Also a Texas Medical Power of Attorney may be revoked. Revocations are required to an in writing, signed by the principal, or by order of a court with proper jurisdiction.
- Revocation of prior Medical Powers of Attorney. A Texas Medical Power of Attorney may contain a statement which specifically revokes previously executed powers of attorney.
- Disclosure statement. The disclosure statement generally tracks statutory language which provides the principal with some important warnings and instructions. It is very important that a principal and the agent carefully review the disclosure statement. You should ask a Texas attorney any questions you may have regarding the implications of the disclosure statement before signing the Texas Medical Power of Attorney.
- HIPAA Release. HIPAA stands for “the Health Insurance Portability and Accountability Act of 1996.” The release, typically attached to a Texas Medical Power of Attorney, authorizes your healthcare providers to release information and records protected under HIPAA to your named agents. Similar to the disclosure statement, it is very important to review the HIPAA release and ask a Texas attorney any questions that you may have regarding the implications of such HIPAA release.
I hope that all Texans will consider seeking legal advice and having a Texas Medical Power of Attorney prepared as a part of their overall estate plan. The Texas Medical Power Attorney is very useful in a variety of situations. A Texas Medical Power of Attorney can be utilized by an agent to make medical decisions for the principal when the principal is unable to make medical decisions for himself. As the life expectancy of our population increases, so too will the number of individuals living with dementia and Alzheimer’s and who lack the ability to make medical decisions for themselves. Without a valid Medical Power of Attorney, your loved ones may have to resort to more restrictive and more costly alternatives for making decisions on your behalf – alternatives such as seeking court intervention and the creation of guardianships. When used in conjunction with other estate planning tools, such as trusts and durable powers of attorney, a Medical Power of Attorney can be a key component to estate and long-term diminished capacity planning.
Contact my office today to schedule a consultation: (903) 944-7800.
Disclaimer: Nothing contained in this blog post or on the website associated with this blog post is intended to create an attorney-client relationship. Vance E. Hendrix, PC, does not represent you or your interests unless and until you have formally engaged Vance E. Hendrix, PC, in writing, and paid the agreed upon retainer. The contents of this blog post and the information contained herein are for informational purposes only and are not intended to constitute legal advice.