Before we discuss the ins and outs ofmedical powers of attorney in Texas as well as what their limitations may be, we at the Law Office of Bryan Fagan would like to discuss with you the definitions of some terms that you will see discussed quite frequently both in this space and this blog. With so many options to choose from in so many sources of information available, we thank you for joining us today here. If you have questions about any of the information that we discussed here today, please do not hesitate to contact the Law Office of Bryan Fagan. We can discuss with you how to approach this subject and what it means to have a power of attorney in place.
The term physician is important when discussing a medical power of attorney. For a medical power of attorney, a physician is a person licensed by the Texas Medical Board or a properly credentialed physician who holds a commission in the uniformed services of the United States and who is serving on active duty in Texas. This means that if you are being treated by a person who calls themselves a doctor but is not licensed under the Texas Medical Board then he or she does not qualify as a physician for a medical power of attorney. Chiropractors and other holistic medical proponents come to mind.
Next, we need to define what an agent is. An agent is an adult to whom authority to make health care decisions is delegated under a medical power of attorney. If you have chosen or are choosing to create a medical directive, then the next step for you will be to choose the person whom you trust and who you think has your best interests in mind when it comes to making medical decisions. When you name that person as the individual who will follow through with any of your wishes in a power of attorney that person may end up being a great candidate to be your agent.
The person who executes a medical power of attorney is known as the principal. As the principal of a power of attorney, you can expand or limit the scope of the document depending on your needs and the circumstances that you are facing. You can choose to make your medical power of attorney form narrowly tailored to accomplish one or two specific goals. On the other hand, if you are not going through anything particularly severe or acute then you may be better off with creating a broader medical power of attorney.
One of the other terms which you will see with some regularity when it comes to creating a medical power of attorney is the word “providers”. A provider is a healthcare provider or an individual or a facility who is licensed, certified, or otherwise authorized to administer healthcare which includes physicians. The provider can also be a residential care provider which is defined as an individual or facility licensed, certified, or otherwise authorized to operate a residential care home. Given the increased percentage of people receiving at-home care rather than institutionalized care, you would also have to believe that any provider who provides at-home care for you would also count as a provider in the context of a medical power of attorney.
What is a medical power of attorney?
Any competent adult can designate a person in their life who can make health care decisions for him or her. You would need to be able to trust this adult to make important healthcare decisions on your behalf should you be unable to do so yourself. Under the law, an individual who has chosen to act under the wishes of a principal is known as an agent.
A medical power of attorney goes into effect immediately once it is fully executed and then delivered to the person who will be acting as an agent. What you need to know is that the power of attorney becomes effective for an indefinite period unless you pull it back or otherwise revoke it. More, the person who acts as the principal may become competent, and therefore the medical power of attorney would no longer be needed.
A medical power of attorney is effective as soon as it is executed and then delivered to the agent. The thing that you need to keep in mind about medical powers of attorney is that they are effective for an indefinite period unless the principal revokes the power of attorney or the principal gains or regains competency. If you or your doctor have a date on which you anticipate you gaining or regaining competency you should note that in the power of attorney itself. However, if on that specific date in your power returning you as the principal are still incompetent then the power of attorney would continue to be effective until competency is gained, or the document is revoked.
One of the key questions that people tend to ask about power of attorney documents is the scope of the authority provided to an agent. Well-meaning agents who are looking out for the best interest of a particular person will want to know when and where they can exercise their authority as power of attorney in areas of health care and the general well-being of the principal. The answer to this question is that an agent can make health care decisions on behalf of a principal only in those situations where the principal’s treating physician states in writing that the principal is incoherent or incompetent. The certification of incompetency must be filed with your principal’s medical records.
What this means is that a principal may need to have a discussion with their doctor to alert him or her to the fact that he or she has a medical power of attorney document and that it may become necessary to put something into writing where the doctor can state on the record that you or the person acting as principal are incompetent and thus that the medical power of attorney should go into effect. Most doctors are willing to do this, however, some are concerned on a practical level about being dragged into some sort of estate planning litigation as the Doctor Who opened up the possibility of a power of attorney being utilized. Therefore, talk to your doctor about this in advance and get their position on the subject. It would do you no good to have a power of attorney document drafted only to find that your primary care doctor is unwilling to take a stance on your competency.
On the other hand, if you are named as an agent under another person’s power of attorney then you need to be able to follow that person’s wishes when it comes to decision making. This requires you to have a relationship with the principal’s treating doctor and any other healthcare providers who are involved in the care of your principal. Based on your knowledge of the principal’s wants and desires you will be bound to make decisions that are in line with how he or she wanted their medical treatment to go. Keep in mind that your principal may have religious and moral beliefs which can complicate how he or she receives medical care. In an ideal world, you would be familiar with the kind of medical care that your principal has been receiving so that you can make educated decisions about how to proceed. If you are named as an agent of any medical power of attorney document for a relative that you do not know well or even for a friend, you should consider whether you will be able to serve that person if you are geographically far away from him or her or have little to no knowledge of their medical conditions.
There are certain healthcare decision-making powers that the medical power of attorney grants to an agent. When a medical power of attorney document is executed, you as the agent are given a great deal of latitude when it comes to permitting certain healthcare procedures and other treatments to be performed on behalf of your principal. This includes any treatment needed to care for your principal from a mental health perspective. In essence, you would hold the same ability to consent, revoke consent, and continue medical care based on changing circumstances that you are encountering on the ground.
One of the tried-and-true hypothetical situations that arise in a medical power of attorney discussion is whether an agent can commit a principal to a mental institution or other inpatient psychiatric care. I know that the attorneys with the Law Office of Bryan Fagan have met with many people over the years who have hesitated to have a medical power of attorney drafted out of concern that the agent could force him or her into staying at a mental institution or a psychiatric ward at a hospital. However, one of the limitations of a medical power of attorney in Texas is that an agent cannot sign up a person for inpatient psychiatric care.
Keep in mind that, as we have already discussed, the medical power of attorney document can contain certain limitations that you would like to see as far as the authority of your agent is concerned. This means that if you have concerns about an agent taking advantage of the document or being put in a situation where he or she could abuse their power then you can draft and tailor the language of your document to be very specific in terms of what he or she can and cannot do regarding health care related decisions on your behalf. Working with an experienced estate planning attorney is also a great way to minimize the risk of having an agent abuse their authority under a medical power of attorney.
How to revoke a medical power of attorney
It may come up that the medical power of attorney that you entered with your agent needs to be revoked. This can be done in writing or orally by notifying the agent or the principal’s doctor. The notification would need to include the intent of the principal to revoke the power of attorney. Keep in mind that a person can revoke a medical power of attorney even if he or she is not mentally competent to make healthcare-related decisions. If the principal then executes a medical power of attorney at some later point then all prior medical powers of attorney are also revoked automatically. One issue that you may run into regarding medical powers of attorney relates to getting divorced from a spouse who is also your agent under a medical power of attorney. Once the divorce is finalized that medical power of attorney is automatically revoked. You would then need to draft a new medical power of attorney and name a new agent if that is what you want to do.
What sort of accountability is there for the agent?
Within the medical power of attorney form, there are clear-cut disclosures made that note the significance of that document. The principal is encouraged to understand as much as possible the implications and consequences of signing a medical power of attorney. At the same time, the agent needs to be someone that you trust and someone capable of understanding your wishes. Preferably, he or she would be familiar with her medical care situation and could immediately jump into their responsibilities as an agent.
A common question that people ask is if they need a medical power of attorney at all. All of us have a certain risk of being injured, falling ill, or otherwise being unable to make medical decisions at least for a short period. In this situation having a medical power of attorney would help you because you would have someone who knows where you are coming from as far as your medical care is concerned. The fact that you have named someone as an agent in a medical power of attorney tells us that you have confidence in this person and trust their reasoning ability when it comes to medical decisions to be made on your behalf.
Selecting an agent is probably the most crucial part of creating a medical power of attorney. This should not be a decision that you enter without thinking through your options and being very intentional when it comes to your decision-making. You can choose to select alternate agents if you think this is necessary. The alternate agent would have the same responsibilities and rights under your power of attorney as your designated agent if he or she was unwilling or unable to act in that capacity.
Your agent does not necessarily have to be your spouse or a family member. For example, the principal’s physician or any other healthcare provider could act as an agent under the power of attorney. If you are living in a nursing home or facility where you are receiving long-term care, then you may choose to have a person who works at that facility act as your power of attorney. Keep in mind that if you choose to appoint your doctor or an employee of a home health agency then that person must choose between acting as your agent or your health care provider. That person would not be able to do both.
A power of attorney form becomes valid once you have signed it in front of either two witnesses or a notary. Whoever witnesses the signing of your power of attorney needs to also sign the document.
A directive to your physician is a document that is rather limited in terms of its scope. This directive will address only withholding or withdrawing medical treatment for a person who has an irreversible condition or a terminal illness of some sort. On the other hand, a medical power of attorney is much broader in terms of its scope and includes decisions that can be made regarding all healthcare matters with a few exceptions. A medical power of attorney does not require that the principal be in a position where he or she has a terminal condition before the power of attorney becomes effective.
While it is not necessary to hire an attorney to execute a valid power of attorney regarding medical decisions, we at the Law Office of Bryan Fagan would at least offer an opinion that it is worth your while to investigate whether or not an attorney could be helpful when it comes to drafting the power of attorney. Remember that if any mistakes are made in drafting and completing the power of attorney it will not be valid and all the work that you put into completing the document will have been pointless.
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 experienced 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 for you to learn more about the world of Texas estate planning as well as what the consequences to your family may be if a probate or guardianship case were to be filed.