Who Makes Medical Decisions in Texas If There Is No Medical Power of Attorney?
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:
- Your spouse.
- An adult child, with the waiver and consent of all other qualified adult children.
- The majority of your children.
- Your parents.
- 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:
- You and your spouse get in a serious accident that incapacitates both of you?
- Or if you are a single parent with minor children, you do not have a good relationship with your parents?
- How about if you’re engaged to be married and would prefer your fiancé, rather than your parents, make medical decisions on your behalf?
- Or if you’d prefer that your mother, rather than your estranged father, make medical decisions?
- 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?
- Or you’d like two or more people to make decisions jointly?
Get the idea?
In these situations 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.