Many people question whether they need to invest the time and money to have certain legal documents prepared. Often that question arises when they don’t understand what a particular document does for them. Here we address one of those essential documents.
What Is The Medical Power of Attorney?
A Medical Power of Attorney is one of several “ancillary” documents that are regularly prepared along with a Will or Trust as part of one’s estate plan. Whereas the Will or Trust takes effect upon one’s death, these other ancillary documents are effective during a person’s lifetime. The medical power of attorney, also sometimes called a health care proxy, is the legal document that gives your chosen agent the authority to make decisions on your behalf regarding medical treatment.
The agent under the medical power of attorney only has the right to make medical decisions for the principal (i.e., the patient) if the principal’s attending physician certifies in writing that, based on his or her reasonable medical judgment, the principal is incompetent to make his or her own medical decisions. This requirement ensures that your agent cannot make health care decisions while you are still able to understand your condition and communicate.
Who Should Have A Medical Power of Attorney?
Generally, all competent adults should have a medical power of attorney. Having the document on hand reduces the risk of a delay in treatment due to the need to identify the appropriate surrogate decision maker for a patient. Texas statute provides that if someone does not have a medical power of attorney, medical decisions can be made by (in this order): the patient’s spouse, or an adult child who has the waiver and consent of all adult children of the patient, or a majority of the patient’s adult children, or the patient’s parents. If one adult child lives near an elderly parent, it can be very time consuming either to get the waiver of all other adult children so the closer-in-distance child can make a decision, or to build a consensus among all of the children for their parent’s medical treatment. Imagine the problem if one of the children can’t be reached. What about the patient without adult children whose spouse is also hospitalized in a common accident? Then the hospital personnel make the patient’s medical decisions. That’s certainly not ideal.
Who Should Make My Medical Decisions?
Also consider whether the default surrogate decision maker would be the appropriate person to make your personal medical decisions. Many times there is one person in the family who knows and understands your personal beliefs better than others. Or perhaps there is one person in the family who absolutely does not share your beliefs. Without a medical power of attorney, you run the risk that the wrong person is put in a decision-making capacity. The medical power of attorney agent is tasked with making health care decisions according to what they know of the principal’s wishes, including the principal’s religious and moral beliefs. When you can choose that person, you have a better chance of having decisions made which you would make yourself.
What Other Benefits Does A Medical Power of Attorney Offer?
The document provides a couple other benefits. First, a principal can give his or her medical agent the authority to make end-of-life decisions for them if they are incapacitated. Obviously, you want to discuss with your agent how you feel about the use of life support and the circumstances in which you feel it is appropriate or unwanted. A surrogate decision-maker (not appointed under the power of attorney) is not authorized to make a decision regarding withholding or withdrawing life-sustaining treatments. Second, having a medical power of attorney can often allow someone to avoid the expense and trouble of securing a guardianship over an incapacitated loved one in order to control medical decisions.
How To Create A Medical Power of Attorney in Texas
To create a medical power of attorney, Texas residents must use a form substantially similar to one promulgated by the Texas legislature. The “substantially similar” requirement ensures that the form is easily recognizable by medical professionals in an emergency. The form also contains disclosures that the legislature believes every principal should read and understand. It should be signed in front of a notary or two witnesses. And it stands to reason that the document cannot be signed when there is a question as to the capacity of the principal. So it needs to be done before there is any problem with Alzheimer’s or any other mental disease or injury.
Get Experience On Your Side With Hammerle Finley Law Firm
Seek assistance from an experienced attorney to correctly evaluate the principal’s capacity, if necessary, and prepare a medical power of attorney, along with the other estate planning and ancillary documents. The attorneys at Hammerle Finley Law Firm are available for consultations in person, via Zoom, or via telephone to discuss your concerns and estate planning goals. Allow us to help you achieve them.
