My Power of Attorney And Directive

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. Durable POA – Under the Texas Probate Code, Section 482, a “durable power of attorney” is defined as a written instrument that:

  1. Designates another person as attorney in fact or agent;
  2. Is signed by an adult principal;

And states either that the power of attorney is not affected by the subsequent disability or incapacity of the principal, or that the power of attorney becomes effective on their disability / incapacity of the principal,” or similar words showing the signor’s intent that the authority conferred on the attorney in fact / agent be exercised only in the 2 instances mentioned, in addition the POA must be acknowledged by the principal in front of a notary public or authorized officer as per the code.   The Durable Power of allows for flexibility and can take effect immediately or at a later date, thus giving you more control.  Medical POA – Under the Texas HEALTH AND SAFETY CODE, SUBCHAPTER D., a “medical power of attorney” is generally defined as a written instrument that:

Gives an agent the ability to make any health care decision on the principal’s behalf that the principal would make on their own if were competent.  However, the an agent can only do so if the principal’s attending physician certifies in writing that in the attending physician’s reasonable medical judgment the principal is incompetent.  This written certification must be filed in the medical records for the Principal.

NOTE: That treatment may not be given to or withheld if the principal objects regardless of whether, at the time of the objection the medical power of attorney is in effect, or the principal is competent.

Notwithstanding the existence of a valid power of attorney, the attending physician shall make efforts to reasonably inform the principal of any pending treatment or of proposed plans to withdraw / withhold treatment; this is to be done prior to following an agent’s advance directive.

The principal’s attending physician and other health care providers must be consulted by the agent, also, the agent shall endeavor to make health care decisions based on and taking into account the principal’s wishes, including the principal’s religious and moral beliefs; or the principal’s wishes are unknown then according to the agent’s assessment of the principal’s best interests.

Notwithstanding any other provision of this subchapter, an agent may not consent to:

  1. Voluntary inpatient mental health services;
  2. Convulsive treatment;
  3. Psychosurgery;
  4. Abortion;  or
  5. Neglect of the principal through the omission of care primarily intended to provide for the comfort of the principal.

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.

Bear in mind that some individuals are excluded from the role of Agent.  Texas Probate Code, Sec. 166.153 states that the following may not exercise the authority of an agent if the person also serves as the Principal’s health care provider, is an employee of said health care provider, is a residential care provider, or is an employee of the residential care provider.  These are modified if the person in question is a relative of the principal.

The medical power of attorney must be signed by the principal in the front of two witnesses, see Texas Probate Code, Section 166.003, for more details.

The medical power of attorney can be revoked by oral or written notification at any time by the principal to the agent or a licensed or certified health or residential care provider or by any other act evidencing a specific intent to revoke the power, without regard to whether the principal is competent or the principal’s mental state.  NOTE: A subsequent medical power of attorney, or the divorce of spouse, one of whom serves as Agent, serves to revoke the original POA.

DIRECTIVE TO PHYSICIANS AND FAMILY, OR SURROGATES, also called a “Living Will”:

The Texas Health and Safety Code authorizes the use of a written Directive to Physicians and Family or Surrogates

If you are at least 18 years old, of sound mind, and acting on your own free will, you may sign a DIRECTIVE TO PHYSICIANS AND FAMILY, OR SURROGATES (“DIRECTIVE”) regarding your personal care in the presence of two qualified witnesses.

The DIRECTIVE can instruct your physician not to use artificial methods to extend the natural process of dying.

The DIRECTIVE must be witnessed by two competent adults. At least one witness cannot be a person who: a. is related to you by blood or marriage; b. has a claim on your estate; c. has been designated by you to make a health care treatment decision on your behalf; d. your attending physician; e. is employed by your attending physician; f. is an employee of a health care facility in which you reside, if the employee is involved in providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.

The Effect of the DIRECTIVE means that life-sustaining treatment can be withdrawn when you are found to suffer with a terminal or irreversible condition that has been diagnosed and certified in writing by the attending physician.

Remember: No one may force you to sign the DIRECTIVE. No one may deny you insurance or health care services because you have chosen not to sign it.  A DIRECTIVE is valid until it is revoked. You may revoke the DIRECTIVE at any time, even in the final stages of a terminal illness. If you revoke the DIRECTIVE, be sure your physician is told of your decision.