What are the key elements and limitations of a medical power of attorney?

Having a medical power of attorney puts you in a position to be able to name a person to make decisions for your health and well-being if you are incapacitated or otherwise unable to do so yourself. Otherwise, the position you put yourself in would be to have someone that you do not want to make those sorts of those decisions for you. In other words, a medical power of attorney gives you autonomy during a time when you otherwise have little control over any of your circumstances. In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss a medical power of attorney and what its limitations are.

Defining what a medical power of attorney is

You may have heard a medical power of attorney being described as an advance directive. If you are ever in a situation where you or a loved one are receiving medical care, the medical records associated with your care will commonly have a box that asks the provider to note whether the person receiving care has an advance directive. This lets the provider know whether it is necessary to be aware that the person has someone else who can make decisions for him or her while incapacitated. Continuing various sorts of care, taking life-saving measures, or receiving specific treatment can be unwanted by some people. By having a medical power of attorney, you are naming a person who has the legal right to make decisions for you that are in line with your wants and desires.

A common misconception that people have regarding medical powers of attorney is that these documents are only for older people. While older people may find themselves in a position to need medical care on a more frequent basis than younger people, that does not mean that younger people should not consider having a medical power of attorney created for themselves. The fact is that people of all ages can have unfortunate medical issues that arise through no fault of their own. It only takes one incident, accident, or stroke of bad luck to put you in a position where a medical power of attorney could be useful to you and your family.

This is not intended to scare or intimidate you. Rather, it is intended to bring awareness of this issue to your doorstep. Preparing with an advance directive can cause you to have greater peace in your daily life knowing that in the event you become ill or injured someone will be able to make decisions on your behalf who has your best interests in mind. This is because you have the power, through a medical power of attorney, to be able to appoint any adult that you want to become your medical power of attorney. Most people will choose a family member or friend to fulfill this role. Making the person you name in the document aware of their designation in your life is a good idea. Not doing so would be like naming an executor of your estate in a will and never mentioning to the executor that you have done so. Imagine their surprise, upon your death, that he or she oversees handling the affairs of your estate.

Once you have selected someone to be your agent (a person who can fulfill your wishes as a principal when you are not able), the next step in the process would be to determine what sort of authority this person will have over you in a health care setting. Selecting the right person to be your agent is critical. You can and should balance the desire for this person to have the fortitude to follow through on your wishes with the ability for this person to be compassionate. Your agent should also be able to follow instructions, communicate well, and otherwise handle stress without losing their composure. Another quality that you are looking for is that this person needs to be willing to travel to be physically present with you during a time of incapacitation. It is not ideal for your medical power of attorney to make decisions on your behalf from across the country.

The bottom line is that your medical agent is given the authority to act and advise when it comes to your well-being during a time when you can exert any degree of control over your situation. A common concern that family members have when a loved one is in a coma, mentally unfit, or otherwise unwell is whether they are making decisions that the care recipient would approve of. Is life-saving measures something that the person would want? Would the person want to receive a specific kind of care that may be controversial? These are all valid questions to ask. Having a medical power of attorney takes some of the guesswork out of this situation.

What happens if you do not have a medical power of attorney?

If you do not have a medical power of attorney in Texas, then whatever facility you are receiving care through will ask family members or friends about the sort of care that you should receive. There are an unlimited number of scenarios that we could go through in a situation like this. However, we can presume for the sake of today’s blog post that you are in a situation where you are receiving hospital care after having sustained major injuries which have rendered you incapacitated. The care that you are receiving and could receive is serious due to the severe nature of your injuries.

In some cases, a doctor can make decisions for your care beyond advising and communicating specific recommendations. In a medical setting, a doctor will sometimes make recommendations on a range of different medical issues or treatment paths. A patient will then be able to make a choice regarding which option to select. However, when you are incapacitated, you are unable to make those kinds of selections. This is where a medical power of attorney comes into play and can help you and your family find guidance and peace of mind during a turbulent time.

When you do not have a medical power of attorney in place and you are incapacitated yet otherwise in need of medical care, Texas law has a plan as far as who will make decisions regarding your medical well-being. The first person who would be in line to make decisions on your behalf would be a spouse, then an adult child if one child is nominated by all your adult children to be the decision maker, and if not then most of your adult children in agreement on an issue. After that parents, relatives, or the medical provider himself can make decisions for you.

For anyone who does not have close family to consult with or otherwise does not want certain people making medical decisions on their behalf, this reality should be a major wake-up call. Keep in mind that if you are not married and in a significant other/partner situation, the law does not allow you to make decisions on behalf of your loved one. You can be bypassed in favor of your significant other’s adult children or another family member. If you intend to remain in a situation like this, then you should consider speaking to your partner about either getting married or otherwise entering into a medical power of attorney to protect yourselves from a situation like this.

What is the process like to get a medical power of attorney?

The main function of a medical power of attorney is to be able to name a person to make health care related decisions on your behalf if you become incapacitated. It would be a helpless feeling to know that you cannot communicate your desires for care to anyone while people must make assumptions about which care you would like. Some medical providers will provide you with paperwork that can be filled out to undergo a medical procedure of some sort. Before you have a surgical procedure done you can investigate whether the provider or surgical facility will have a medical power of attorney form ready for your signature.

An estate planning attorney, such as those with the Law Office of Bryan Fagan, can help you to create a medical power of attorney form, as well. You can specify what limitations there are on the person who is named as your agent within the medical power of attorney document. Keep in mind that it is not impossible to conceive of a situation where the agent you name in eh power of attorney documents could pass away before you or otherwise be unable to perform the duties specified for them within your final decree of divorce. Therefore, you can and should name a backup.

Keep in mind that you can go online and create a power of attorney via a template or website. However, bear in mind that some of these forms are invalid or otherwise not helpful. You may never know who drafted these forms. In this day and age, it could be a computer who drafted them without anyone being able to hold the computer or a real person responsible.

What needs to be included in a power of attorney for it to be legally enforceable?

You need to sign your power of attorney in front of a notary or have two adult witnesses view the signing of the document. The person you name to make decisions on your behalf does not need to have a background in the law. All he or she needs to be is to do is be trustworthy and be willing to sit beside you during those tough moments in your life.

Once created, the medical power of attorney can last as long as you want it to or until you pass away, whichever happens first. The medical power of attorney will go into effect in some cases as soon as you sign it. You can choose to have the medical power of attorney become effective before you become incapacitated. Otherwise, the most common time for a medical power of attorney document to become valid is once you are incapacitated and otherwise unable to make decisions for yourself when it comes to your health care choices.

In that case, you should speak with an experienced estate planning attorney to determine the best course of action for you to take regarding this document. You can speak to that attorney about your plans for the medical power of attorney and he or she can advise about a particular issue or counsel you on what to add or remove based on your circumstances. Meeting with an attorney about issues concerning a medical power of attorney is a better option than finding a medical power of attorney template online and building the document on your own.

Additional information about a medical power of attorney

A medical power of attorney does not have to be notarized to be declared valid by a court or medical institution. If the document is witnessed by two adults that is the equivalent of having it notarized. Keep in mind that you need to wait to sign the document until you are in front of the notary or the two witnesses. The person that you name as your agent does not have to be present for the signing of the medical power of attorney. Once you have signed the document in front of your witnesses or a notary you should have copies made for any healthcare provider that you regularly see, your agent, or a family member like your spouse. These groups of people must have ready access to the document if they become incapacitated.

Please note that in Texas, a medical power of attorney only applies to health care related issues if you become incapacitated. For financial issues, you will need to have a durable power of attorney drafted to have the financial decisions made that you would like. Again, an estate planning attorney is a great resource for a person in your position. An estate planning attorney can take care of all the documents we discussed today including a durable power of attorney, medical power of attorney as well as a will or trust. You can try to draft these documents yourself or use an online resource but the chances of those resources working as well as an attorney is slim to none.

For married people, your spouse is already in a position where he or she is legally entitled to be able to speak on your behalf in a medical situation should you become incapacitated. However, you can choose another person to step into that position if you do not wish your spouse to be able to fulfill that responsibility. If you do not want your spouse to be the person speaking on your behalf, then you should create a medical power of attorney and name the person in that document that you do want to be able to make decisions on your behalf in a health care scenario.

If you are an adult child of a parent who is going through difficult times regarding their health, then it is understandable that you will want to discuss these issues and make sure mom or dad is being cared for as well as possible. Even if both of your parents are still married, they may not be in a position where they are mentally able to make decisions for the other person. In that case, you and your siblings (if you have any) should have a discussion with your parent(s) about this situation and determine whether a medical power of attorney may be helpful.

If your parent does choose to have a medical power of attorney drafted, then your parent should think clearly as possible about who should be named. He or she may have several options to choose from. It is best if the person that your parent chooses is already someone who is involved in their caretaking and health already. That way the person does not have to be brought up to speed with the situation your parent is going through. The person named as medical power of attorney should be aware that he or she has been named in this capacity and should be willing to fulfill that obligation and responsibility. It can be a difficult position for you to be the one to talk to your parent about sensitive matters like their health care decisions and whether he or she needs help in that regard. Working with an experienced estate planning attorney can help here, too.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way to learn more about the world of Texas estate planning as well as how your family may be impacted by the filing of a probate case.

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