What is a Medical Power of Attorney and Why Do You Need One on File?

A medical power of attorney is a legal document that gives someone you designate the right to make decisions about your medical care on your behalf if you become incompetent. If you are separated from, divorcing your spouse, or considering divorcing your spouse, it is likely that you would not want your spouse making medical decisions on your behalf. You may designate an adult, known as an agent as well as an alternative agent if your primary agent is unavailable.

In the state of Texas under Texas Health and Safety Code 166.039(b), if you do not have a medical power of attorney on file and you become incapacitated, then your legal spouse will have first priority in determining treatment decisions including the decision to withhold or withdraw life sustaining treatment. In Texas, the order of priority of who can make medical decisions on your behalf if you become incapacitated are as follows:

1. Your spouse;

2. Your reasonably available adult children;

3. Your parents; or

4. Your nearest living relative.

A medical power of attorney is always a durable power of attorney, meaning that it only comes into effect if, when, you become incapacitated. The attending physician is the one who certifies, in writing, that you are incapacitated, and the physician will file a certification in your medical record that, based on the attending physician’s reasonable medical judgment, you are incompetent.

A medical power of attorney will continue to be effective until you become competent again, you revoke it, or an expiration date comes into effect.

An attorney can draft this document for your behalf or you can choose to draft it yourself using an example provided by the Texas penal code.