Many of us know the importance of estate planning, like making a will or establishing a trust, especially as we age. What many neglect, however, may be other critical estate planning documents, like a medical power of attorney.
Do you have a medical power of attorney? If you do not, or if it’s been several years or you’ve had some serious life changes since you last drafted one, it may be time to revisit this topic to ensure your wishes are protected if you cannot advocate for yourself.
What is a Medical Power of Attorney?
A Medical Power of Attorney (MPOA) is a legal document establishing another adult as your legal representative to make healthcare and medical treatment decisions on your behalf in the event you cannot.
For example, say you were in a car crash and injured your head. You’re in a coma and cannot make decisions about your medical care. Your MPOA can make medical decisions for you.
Your representative should be someone you know and trust – usually your spouse, but your adult children, a parent, or a trusted friend can also fulfill this role.
What is the Difference Between a Medical Power of Attorney and a Living Will?
Both of these legal documents give another person agency over your medical care. However, there are a couple of important differences between these documents:
- A living will – known as a Directive to Physicians – permits you to decide the use of life-sustaining treatments if you are terminal or have an irreversible condition, and you can list specific medical procedures you do or do not want.
- An MPOA, on the other hand, doesn’t list specific medical procedures you do or don’t want. Instead, it gives your representative more broad powers to handle your medical care.
Important Changes to Texas Law Regarding Medical Power of Attorney
The Texas legislature significantly changed the laws governing MPOAs in the Lone Star State. The most important change is the priority order of people authorized to make medical care decisions for someone who cannot communicate their treatment preferences.
The top priority is still your spouse. However, now, the second priority is the individual’s adult children. However, the changes to the law no longer permit a “majority rules” vote of adult children to determine the course of their parent’s medical care, nor is there a provision in place to determine the incapacitated adult’s decision-maker if the adult children cannot agree.
Suppose a spouse and adult children are not available to make decisions for the incapacitated individual. In that case, the third priority for making decisions is the parents (with no provision if the parents disagree). The fourth priority is the individual’s next living relative — although there’s a chance that that relative could be so distant they don’t even know the individual exists, nor have any idea what would be best for them.
A final change: no clergy member (non-relative clergy member) can make decisions about the individual’s medical care if none of the priority decision-makers are available.
You can see how this could become contentious without your expressed wishes being known. If you are disabled or facing the end of life, your loved ones may be too emotional to think rationally about what is best for you. Creating the necessary legal documents helps minimize the risk of a contentious situation.
How Do I Establish a Medical Power of Attorney?
First, consider your close family members carefully. Who is close enough to you that you trust your medical care if you cannot advocate for yourself? Have you and your spouse talked about your wishes? Do you have adult children nearby who can support your choices?
Once you determine your choice of person for your legal representative, contact an experienced estate planning lawyer. They can explain how the recent changes to the Texas Health & Safety Code § 313.004(a) affect your choices and draft an MPOA compliant with the new laws.
Take Control of Your Future Today – Share Your MPOA Information and Stay Prepared
Be sure to alert your loved ones to the location of a copy of your new MPOA and the name of your attorney, should it be necessary to present it to the attending doctor. Finally, remember that if you have any major life changes, such as divorce or remarriage, you will want to revisit your MPOA.