Do I need a Power of Attorney? Yes, a power of attorney, be it a Durable or Medical Power of Attorney can provide security and peace of mind.
Under the Texas Probate Code, Section 482, a "durable power of attorney" is defined as a written instrument that:
As you may have noticed the Durable Power of allows for flexibility and can take effect immediately or at a later date, thus giving you more control.
Under the Texas HEALTH AND SAFETY CODE, SUBCHAPTER D., a “medical power of attorney” is defined as a written instrument that:
Allows an agent to make any health care decision on the principal's behalf that the principal could make if the principal were competent, but, an agent may exercise authority only if the principal's attending physician certifies in writing and files the certification in the principal's medical record that based on the attending physician's reasonable medical judgment, the principal is incompetent.
And while this certification is important, one must note that treatment may not be given to or withheld from the principal if the principal objects regardless of whether, at the time of the objection:
Notwithstanding the existence of a valid power of attorney, the principal's attending physician shall make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing an agent's advance directive.
It is only after consultation with the attending physician and other health care providers, that the appointed agent shall make a health care decision that is based on and takes into account the following:
While the power of attorney is effective indefinitely on execution as provided by this subchapter and delivery of the document to the agent, one still has flexibility with medical decisions because it is possible to revoke the Power of Attorney as provided by this subchapter or if the principal becomes competent they can act on their own behalf. In addition, if the medical power of attorney includes an expiration date and on that date the principal is incompetent, the power of attorney continues to be effective until the principal becomes competent unless it is revoked as provided by this subchapter.
Sec. 166.153. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT. A person may not exercise the authority of an agent while the person serves as:
Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug. 26, 1991. Renumbered from Civil Practice & Remedies Code Sec. 135.003 by Acts 1999, 76th Leg., ch. 450, Sec. 1.05, eff. Sept. 1, 1999.
Sec. 166.154. EXECUTION. (a) Except as provided by Subsection (b), the medical power of attorney must be signed by the principal in the presence of two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2). The witnesses must sign the document.
(b) The principal, in lieu of signing in the presence of the witnesses, may sign the medical power of attorney and have the signature acknowledged before a notary public.
(c) If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal's name in the principal's presence and at the principal's express direction. The person may use a digital or electronic signature authorized under Section 166.011.
Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug. 26, 1991. Renumbered from Civil Practice & Remedies Code Sec. 135.004 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05, eff. Sept. 1, 1999.
Amended by: Acts 2009, 81st Leg., R.S., Ch. 461, Sec. 8, eff. September 1, 2009.
Sec. 166.155. REVOCATION. (a) A medical power of attorney is revoked by:
(b) A principal's licensed or certified health or residential care provider who is informed of or provided with a revocation of a medical power of attorney shall immediately record the revocation in the principal's medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal's care.