What Is a Power of Attorney?
A power of attorney is a document in which a person (the principal) gives authority to another person (the agent) to make decisions on the principal's behalf.
Principals can give their agents broad powers or limited powers through a power of attorney. You should consider having two powers of attorney in Texas: one for financial authority and another for authority over your health care.
What Is a Texas Medical Power of Attorney?
A medical power of attorney is a power of attorney that allows you to name an agent to make health care decisions for you.
An agent will not be able to act on your behalf until your attending physician certifies in writing that you are incompetent to make decisions. Your agent would have the authority to make any healthcare decision that you could make for yourself if you were competent. However, there are several healthcare services that an agent can never consent to on your behalf:
- Voluntarily hospitalization for mental health treatment
- Convulsive treatment (commonly known as electroshock therapy)
- Psychosurgery (lobotomy)
- Abortion
- Denying care intended to make you comfortable
If you are conscious and object to your agent's treatment choice, your physician will do as you say, even if a power of attorney has been triggered.
A medical power of attorney lasts indefinitely unless you designate an expiration date or later revoke it. Even if your medical power attorney expiration date occurs while you are incompetent, it will not expire until you become competent again.
How To Get a Texas Power of Attorney
If you want a power of attorney, you can hire an attorney to help you or do it yourself.
We offer an easy way to download a form yourself. By answering a few short questions, we can guide you to the correct form for your situation.
If you do not hire an attorney, using these forms can help ensure that you have a valid power of attorney, provided you follow the instructions and do not modify them.
Other Places to Get a Power of Attorney
Texas law also has powers of attorney in its statutes, including forms for both a statutory durable power of attorney and medical power of attorney. The statutory durable power of attorney form is available at Section 752.051 of the Texas Estates Code. The medical power of attorney form is available at Section 166.164 of the Texas Health and Safety Code. Hospitals and health care providers also often have blank medical power of attorney forms available.
Once You Have Your Form
These durable and medical powers of attorney are fill-in-the-blank forms, but that does not mean you should fill one out quickly. Follow these steps:
1. Decide who your agent should be
You should give serious thought to what powers you want to delegate and who your agent should be. Choose someone responsible, trustworthy, and who can make good choices.
2. Decide what powers you want to delegate to your agent
You can give your agents the ability to make almost every decision you could legally make for yourself. You can also limit the powers you give. Your powers of attorney can limit your agents' powers to specific transactions, types of transactions, or medical decisions.
However, you should be careful about limiting an agent's powers under a medical power of attorney or durable financial power of attorney. If you limit their powers too much, they will not be able to make important decisions for you while you are incapacitated.
3. Find witnesses
Whether or not you use a statutory form, both the durable power of attorney and medical power of attorney must be appropriately signed and witnessed to be valid.
Two witnesses must sign the medical power of attorney. In the alternative, the principal can acknowledge their signature before a notary public.
Each witness must be a competent adult, and that least one of them must not be:
- A person designated by the principal to make health care or treatment decisions
- A relative
- A person who will inherit property or assets under the principal's will or who potentially have a claim against the principal's estate after the principal's death
- The principal's attending physician or an employee of the physician
- An employee of a health care facility in which the principal is a patient
A durable power of attorney does not need to be witnessed. Still, the principal must acknowledge it before a notary public or another person authorized to administer oaths.
4. Fill out the form and sign it in front of witnesses
Now that you know who is involved and what powers you want to give, fill out your form.
A durable power of attorney must be a "writing or other record" signed by the principal that names an agent to act on behalf of the principal. It does not need to use the term "power of attorney," but you should use those words to avoid confusion.
A durable power of attorney must include one of the two following phrases or similar words that make it clear the agent's authority will not cease if the principal is incapacitated. It is best to use one of the following phrases:
- "This power of attorney is not affected by subsequent disability or incapacity of the principal"; or
- "This power of attorney becomes effective on the disability or incapacity of the principal."
If you want your power of attorney to be effective when you sign it, use the first option. If you want it to be effective only when you are incapacitated, use the second option. If your financial power of attorney fails to include one of the above phrases or similar language, it will not be a durable power of attorney. It will be considered a general power of attorney, meaning the agent's powers cease upon your incapacity.
5. Finally, sign your power of attorney
Sign your medical power of attorney in front of witnesses or your durable power of attorney with a notary.
Note that a principal must be an adult and competent for their signature to be valid. A principal must sign the medical power of attorney unless they are physically unable to. In that case, another person can sign on the principal's behalf if the signature is made in the principal's presence and at the principal's express direction.
A photocopy or electronic copy of a properly executed durable power of attorney is valid. A third party can rely on it as if it were the original.
