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Medical Powers of Attorney and Directives

Who Makes Medical Decisions in Texas If There Is No Medical Power of Attorney?

by Rania Combs

I received an email from someone whose uncle recently suffered several strokes and became incapacitated as a result. He didn’t have a Medical Power of Attorney. The nephew asked if it was possible to obtain the Texas Medical Power of Attorney at this point to make medical decisions for him.

What is a Medical Power of Attorney

A Medical Power of Attorney is a document that grants a person you choose the power to make important medical decisions for you if you become incapacitated. You control the power to decide who will make these important decisions in your incapacity. No one else can grant the power on your behalf. Therefore, you must sign the medical power of attorney before you become incapacitated. An incapacitated individual cannot grant that power.

However, if you become incapacitated and do not have a Texas Medical Power of Attorney, all is not lost. A family member may still have the power to consent to medical treatment on your behalf. It may just not be the person you would have preferred to act as your surrogate.

Who Can Consent to Medical Treatment If I Don’t Have One?

Section 313.004 of the Texas Health and Safety Code provides that if an adult patient of a hospital lacks capacity, an adult can act as a surrogate. In the order of priority, the following people can consent to treatment:

  1. Your spouse.
  2. An adult child, with the waiver and consent of all other qualified adult children.
  3. The majority of your children.
  4. Your parents.
  5. An individual clearly identified to act on your behalf before you became incapacitated, your nearest living relative, or a member of the clergy.

So Why Bother Getting a Medical Power of Attorney?

At first glance, the statute seems to cover all the bases. If I became incapacitated, I would want my husband making important medical decisions on my behalf. Since I now have two college-aged children, they would be able to act on my behalf, although I would worry about the burden that would place on them.

But what if:

  1. You and your spouse get in a serious accident that incapacitates both of you?
  2. Or if you are a single parent with minor children, you do not have a good relationship with your parents?
  3. How about if you’re engaged to be married and would prefer your fiancé, rather than your parents, make medical decisions on your behalf?
  4. Or if you’d prefer that your mother, rather than your estranged father, make medical decisions?
  5. What if you’re part of an untraditional family and would prefer your partner to make important medical decisions rather than members of your family?
  6. Or you’d like two or more people to make decisions jointly?

Get the idea?

In theses situation and many others, having a Texas Medical Power of Attorney in place is the only way to ensure that the person you choose will be able to make medical decisions on your behalf.

This article was originally posted on October 24, 2012, and updated on April 22, 2020.

Photo by Helloquence on Unsplash


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Comments

  1. charles

    June 8, 2015 at 11:04am

    i have encountered a problem with my mother in law wanted to be in control of my wife treatment. She wants to make decisions pertaining to my wife medical decisions. What can I do deter her interference?

    1. Rania Combs

      June 22, 2015 at 12:57pm

      A medical power of attorney will allow your wife to designate a person she chooses to make medical decisions on her behalf if she is incapacitated.

      1. Natash

        March 26, 2019 at 8:03am

        My brother doesn’t have a will or power of attorney,
        and has 3 sisters. Who would be the power of attorney? The oldest sister?

        1. Rania Combs

          April 24, 2019 at 5:04pm

          If he has not signed a power of attorney appointing an agent, no one can the the agent under the power of attorney.

  2. kaitlyn

    December 7, 2015 at 3:11pm

    I am pregnant. We aren’t married just yet, would it be ideal for me to make the father my power of attorney in case something happens in labor or before. 1,so that he is able to make the medical desisions he and I have discussed, rather than my next of kin. And 2 will it protect him if say, he makes the decision to save baby and not myself (because that is what I want) and my family were to sue him for that desision?

    1. Rania Combs

      December 31, 2015 at 7:09pm

      You can appoint whomever you feel will best carry out your wishes. However, if you don’t have a medical power of attorney, the Texas statutes will dictate who will make medical decisions for you. The following article explains who can consent to treatment without a power of attorney: Can Someone Make Medical Decisions for Me If I Do Not Have a Medical Power of Attorney?

  3. Jennifer

    March 23, 2016 at 1:24am

    I need to assist my father in making appointments, discussing medical records and billing. He is a fully functioning adult but is abdicating all medical treatment. Would a medical power of attorney suit our needs?

    1. Rania Combs

      March 23, 2016 at 9:52am

      A medical power of attorney and HIPAA authorization would help you assist your father.

  4. Dan

    September 16, 2016 at 4:55pm

    Does Texas law allow multiple agents to be appointed re: medical & general POAs? Thank You.

    1. Rania Combs

      September 23, 2016 at 3:43pm

      Hi Dan. Yes. Multiple agents can be appointed.

      1. Anne

        January 18, 2017 at 6:06pm

        If I appoint a medical power of attorney, can I still make my own medical decisions, such as get dentures, even if my medical power of attorney does not agree I should have them, assuming I am not declared incapacitated in any way?

        1. Rania Combs

          January 23, 2017 at 5:56pm

          Of course. The medical power of attorney applies in your incapacity. When you sign it, you’re not appointing someone to act instead of you, just for you when you are incapacitated and are unable to make those decisions.

  5. Rebecca McGrew

    April 5, 2017 at 1:56pm

    If I become unable to make my own decisions does my spouse automatically get medical power of attorney if nothing was signed beforehand or would my children be able to make medical decisions for me?

    1. Rania Combs

      April 5, 2017 at 2:17pm

  6. Kat

    March 21, 2018 at 12:19am

    My sister is hospitalized and aware, but in and out of consciousness. She will be hospitalized for weeks. There is no poa or advanced directive. Under this situation her husband would make the decisions, but he is barely holding himself together and becoming increasingly unstable. He also has a history of spousal abuse – hes been arrested for it. They are not legally separated but have been living in different states. My sister’s adult daughter is stable and able to make decisions for her. What can be done to remove him as the decision maker for her healthcare.

    1. Rania Combs

      March 23, 2018 at 9:01am

      I recommend that you engage an attorney in your community for assistance.

  7. Janice Haley

    November 24, 2018 at 8:53pm

    I have 2 adult children but I also have a neice that is more like my daughter, she is also a nurse & I would like her to be my medical power of attorney. Can I appoint her instead of my children?

    1. Rania Combs

      November 28, 2018 at 7:01pm

      You can appoint whomever you choose to serve as your agent.

  8. Mary

    December 10, 2018 at 12:15pm

    Can I give someone other than my spouse medical power of attorney?

    1. Rania Combs

      December 10, 2018 at 12:51pm

      Yes.

  9. Joshua

    January 22, 2019 at 10:42pm

    Can someone make me power of attorney without my approval or without me signing anything?

    1. Rania Combs

      January 28, 2019 at 9:07pm

      It is always best to verify those named as power of attorney are willing to act as agent because someone who is unwilling to serve can decline to take on the responsibility.

  10. jane

    February 24, 2019 at 1:01pm

    What happens if person has no one to name as POA? What happens in case of being incapacitated?

    1. Rania Combs

      April 24, 2019 at 5:51pm

      In that case, a court-appointed guardian may be necessary.

  11. Erica

    June 15, 2019 at 2:11am

    My partner and I have been discussing this. She has no parents but 8 living siblings. We are not married. We live in Texas. Would her siblings automatically be considered the decision makers over myself, simply because we are not married? We do not intend on being married however she only wants me making any decisions for her.

    1. Rania Combs

      July 18, 2019 at 12:03pm

      If you want your partner to make medical decisions for you, you should appoint her as your agent in a medical power of attorney.

  12. Carlo

    March 10, 2020 at 4:46pm

    The differences between the legal terms, “durable power of attorney”, “medical power of attorney”, “durable medical power of attorney” and “medical directive” seem to be saying essentially the same thing but I know that legal terminology is usually very precise so that, the various terms must be describing subtle differences. However, everything I have read takes me around in circles. Could you very simply tell us what it is that makes the terms different or are they all essentially the same ?

    1. Rania Combs

      March 13, 2020 at 11:08am

      The articles you are reading may be referring to the same thing. Different states may use different terminology for what is known in Texas as a Medical Power of Attorney. A Medical Power of Attorney allows a person to appoint an agent to make medical decisions for him if he becomes incapacitated and cannot make those decisions for himself. The Medical Power of Attorney remains in effect until revoked, which means it is durable. The following article may help: What is the difference a Medical and Durable Power of Attorney?

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