Why You Still Need to Talk to Your Medical Power of Attorney Agent
Congratulations on signing your estate planning documents! I am so sorry to be the one to tell you, but there is still one big task left to do: you should instruct your agents on their duties.
I understand that may be intimidating, so let’s do a bit of role-playing to help get you through it.
A Scripted Conversation With Your Texas Medical Power of Attorney Agent
We’ll start with a phone call to your friend Sam, whom you designated as your agent on your Texas medical power of attorney.
Opening the Conversation With Your Agent
You: “Hello, Sam? It’s me. Yeah, I just wanted to tell you that I did go ahead and name you as my primary agent on my medical power of attorney. I really appreciate you agreeing to serve.
When a Medical Power of Attorney Takes Effect
There’s nothing for you to do right now; I’m feeling fine. This document is for the road when I get sick. Your job as my agent doesn’t start until my attending physician has certified in writing that I am incompetent and filed it in my medical record. You know, if I have a stroke or get dementia or something like that.
Your Rights Even After Being Declared Incompetent
Even if the doctor has said I am incompetent, the doctor is supposed to make reasonable efforts to inform me about any proposed treatment, or withdrawing or withholding treatment. If I object, then my decision is binding, and you’re off the hook.
How Healthcare Decisions Are Made by Your Agent
But if I don’t object or decide, then you will need to consult with the doctors and other health care providers to make that healthcare decision for me. You can, and probably should, request and review my medical and hospital records. You can execute a release required to obtain the information.
The Standard Your Agent Must Follow
What criteria should you use to make your decision on my healthcare? It should be based on my wishes, including my religious and moral beliefs. So, I guess I should tell you what those are.
Sharing Important Medical Information With Your Agent
Would you have time to meet for lunch – my treat! – next week and talk about it? You can? That’s great. My lawyer suggested that I give you a folder containing a copy of the medical power of attorney, a list of my physicians, my current medications, and my medical history, so I’ll bring that with me.
Of course, things may change, and I’ll keep an updated folder at home in the top drawer of that unlocked filing cabinet in the second bedroom.
How the Medical Power of Attorney Was Properly Signed
Speaking of my law firm, they actually drafted my medical power of attorney and supervised me signing it, before 2 witnesses. I did that to forestall any questions about its validity.
How Long the Agent’s Authority Lasts
Anyway, once the doctor declares that I am incompetent, you will serve as my agent until I revoke the medical power of attorney or I become competent. I can revoke it verbally or in writing, or by signing a new medical power of attorney.
What a Medical Power of Attorney Agent Cannot Do
There are still things you won’t have the power to consent to, such as voluntary inpatient mental health services, convulsive treatment, psychosurgery, abortion, or omitting care primarily intended to provide for my comfort.
Which brings up a good point – I will tell you at our lunch how I feel about medical marijuana.
What Happens if a Doctor Refuses to Follow Instructions
What if one of the doctors won’t follow your directions? Then you can select a different physician for me.
Backup Agents and Supporting Documents
I also named 2 back-up agents in case you cannot or do not want to serve when the time comes. And I signed a HIPAA release and Directive to Physicians – more on that when we meet!”
Final Takeaway
See how easy that was? Next week, we’ll script the talk for the agent on your durable (financial) power of attorney.
Hammerle Morris Is Here to Help You Plan With Confidence
Having a medical power of attorney is only part of the process. Clearly explaining your wishes and your agent’s role helps ensure healthcare decisions are carried out as intended when it matters most.
At Hammerle Morris Law Firm, we help clients create estate plans that work in real-life situations, not just on paper. Schedule a consultation to protect your intentions and your peace of mind.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
