Texas Healthcare Power of Attorney Requirements
In Texas, signing a Medical Power of Attorney does not hand your agent any authority right away, since your attending physician must first certify in writing, in your medical record, that you are incompetent to make your own health care decisions before your agent can act.
Introduction
In Texas, signing a Medical Power of Attorney does not hand your agent any authority right away, since your attending physician must first certify in writing, in your medical record, that you are incompetent to make your own health care decisions before your agent can act. This document is what lets you name someone you trust, called an agent, to make those health care decisions for you once that happens. In Texas, the form is officially titled the "Medical Power of Attorney Designation of Health Care Agent," created and governed by Subchapter D of the Texas Advance Directives Act (Texas Health and Safety Code Chapter 166, Sections 166.151 through 166.166). This is a health-care-only instrument, unlike a general or financial power of attorney, limited to health care decisions, saying nothing about your money, property, or bills. It also defies a common assumption: your agent does not receive authority the moment you sign. Your agent can only start making decisions once your attending physician certifies, in writing and in your medical record, that you are incompetent to decide for yourself. Until then, you go on making your own health care choices. Texas gives you two ways to make the document legally valid: sign it in front of two qualified witnesses, or sign it before a notary public. Texas Health and Human Services publishes the official statutory form, and there is no state registry to file it with, so you simply keep the original and give copies to your physician, your agent, and any alternate agents.
Key Things to Know
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Texas's Medical Power of Attorney is officially titled the "Medical Power of Attorney Designation of Health Care Agent": it lets you (the principal) name a trusted adult (the agent) to make health care decisions for you, but only once you become unable to make those decisions yourself.
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Your agent's authority does not start the moment you sign. It begins only after your attending physician certifies in writing, in your medical record, that you are incompetent to make your own decisions (Tex. Health & Safety Code Section 166.152(b)).
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Unless you limit it in the document, your agent can make any and all health care decisions for you, including consenting to, refusing, or withdrawing treatment, and viewing your medical records.
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Your agent cannot be your treating physician, your residential care provider, or an employee of either, unless that person is your relative (Section 166.153).
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You can sign in front of two competent adult witnesses (at least one must meet extra qualifications, such as not being your agent or a relative) or sign before a notary instead. You do not need both a notary and witnesses.
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You can revoke the document at any time, no matter your mental state, just by telling your agent or a health care provider, orally or in writing. No specific form is required.
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If you name your spouse as agent and later divorce, their authority ends automatically unless your document states otherwise.
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Texas has no central state registry for Medical Powers of Attorney. Keep the signed original and give copies to your physician, your agent, and any alternate agents.
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This is a different document from Texas's Statutory Durable Power of Attorney, which covers property and financial decisions, not health care.
Key decisions before you file
Before you file a Healthcare Power of Attorney in Texas, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
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Texas Requirements for Healthcare Power of Attorney
The principal designates a primary health care agent (full name and contact information) using the statutory Medical Power of Attorney form (Tex. Health & Safety Code § 166.164); the form also lets the principal name one or more alternate agents who serve if the primary agent is unable or unwilling to act.
The statutory form grants the agent authority to make any and all health care decisions for the principal, including consenting to, withdrawing, or withholding treatment, accessing medical records, and making life-sustaining-treatment decisions, except to the extent the principal limits that authority in the document itself (Tex. Health & Safety Code § 166.152(a); form language at § 166.164).
Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.
The document itself is legally effective indefinitely once signed and delivered to the agent, but the agent's authority to actually make health care decisions may be exercised only after the principal's attending physician certifies in writing, filed in the principal's medical record, that the principal is incompetent (Tex. Health & Safety Code § 166.152(b), (g)). The agent's authority begins only after a physician certifies the principal's incompetence; unlike a financial power of attorney, there is no option to make the agent's authority effective immediately upon signing. The term 'durable' in Texas law applies to the separate Statutory Durable Power of Attorney for financial matters, which allows the principal to choose between immediate or springing authority.
Incapacity is determined by the principal's attending physician alone, who must certify in writing, and file the certification in the principal's medical record, that in the physician's reasonable medical judgment the principal is incompetent (Tex. Health & Safety Code § 166.152(b)). Texas does not require two physicians to concur.
The principal may revoke the Medical Power of Attorney at any time and regardless of competency or mental state, by oral or written notice to the agent or to a licensed or certified health or residential care provider, by any other act showing clear intent to revoke, or by executing a later Medical Power of Attorney (§ 166.155(a)). If the agent is the principal's spouse, the agent's authority ends automatically if the marriage is dissolved, annulled, or declared void, unless the document states otherwise (§ 166.155(a-1)). A provider informed of a revocation must record it in the principal's medical record and notify the agent and other known current providers (§ 166.155(b)).
The principal signs before two competent adult witnesses, or alternatively signs with the signature acknowledged before a notary public (no witnesses needed if notarized) (§ 166.154). At least one of the two witnesses, not necessarily both, must also meet additional qualifications (§ 166.003(2)): not the named agent, not related to the principal by blood or marriage, not entitled to any part of the principal's estate, not the attending physician or that physician's employee, not a facility employee providing the principal's direct care (or an officer, director, partner, or business-office employee of the facility), and not a creditor of the principal's estate.
An agent cannot exercise authority while also serving as the principal's health care provider, an employee of that provider, the principal's residential care provider, or an employee of that residential care provider, unless that person is a relative of the principal, in which case the dual role is allowed (§ 166.153).
Under the Texas Revised Uniform Anatomical Gift Act, an agent authorized to make health care decisions under a Medical Power of Attorney may also make an anatomical gift on the principal's behalf, unless the Medical Power of Attorney (or another signed record) expressly prohibits it (Tex. Health & Safety Code § 692A.004).
Texas's Medical Power of Attorney agent cannot consent to voluntary inpatient mental health services, convulsive (electroshock) treatment, psychosurgery, or abortion on the principal's behalf; a principal who wants advance mental health treatment authority should instead consider Texas's separate Declaration for Mental Health Treatment.
Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Medical Power of Attorney.
An advance directive, including a Medical Power of Attorney, validly executed in another state or jurisdiction is given the same effect as one executed under Texas law, though this does not authorize any health care act otherwise prohibited under Texas law (§ 166.005).
The statutory Medical Power of Attorney form includes a block for the principal to name one or more alternate (successor) agents who assume authority if the primary agent is unable or unwilling to serve (§ 166.164, statutory form).
The agent must make health care decisions in accordance with the principal's wishes, including the principal's religious and moral beliefs, as stated in the document or otherwise known to the agent; where wishes are unknown, the agent must act in the principal's best interest (§ 166.152(a); statutory form disclosure language at § 166.164).
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Check my Healthcare Power of AttorneyFrequently Asked Questions
A Medical Power of Attorney in Texas is a legal document, created under Texas Health and Safety Code Chapter 166, that lets you name a trusted adult (your agent) to make health care decisions for you if you ever become unable to make them yourself. It covers only health care decisions, such as consenting to or refusing treatment and accessing medical records, and takes effect only after your attending physician certifies in writing that you are incompetent to decide for yourself.
A Medical Power of Attorney covers only health care decisions. Texas's Statutory Durable Power of Attorney (Estates Code Chapter 751) covers property and financial matters instead, such as banking or real estate, and by law cannot authorize health care decisions. The two documents also start differently: the Durable Power of Attorney is notarized only, and you choose at signing whether it takes effect immediately or springs into effect upon incapacity. The Medical Power of Attorney can be signed before witnesses or a notary, but there is no immediate-effect option, since your agent's authority always waits for your physician's written incapacity certification.
No. Texas law requires two competent adult witnesses, but only at least one of them must also meet additional qualifications, meaning that witness cannot be your named agent, a relative by blood or marriage, entitled to your estate, your attending physician or that physician's employee, or certain facility employees who care for you directly (Tex. Health & Safety Code Sections 166.003, 166.154). The other witness only needs to be a competent adult.
No. Texas law bars a person from acting as your agent while also serving as your health care provider, your residential care provider, or an employee of either, unless that person happens to be your relative (Tex. Health & Safety Code Section 166.153).
No. Texas does not operate a central advance-directive registry. You keep the signed original yourself and give copies to your physician, your agent, and any alternate agents so they have it when needed.
You can revoke it at any time, regardless of your mental state or competency, simply by telling your agent or a health or residential care provider that you are revoking it, orally or in writing, or by signing a later Medical Power of Attorney. No specific written form is required for revocation (Tex. Health & Safety Code Section 166.155).
Texas law allows another adult to sign the document with your name, as long as they do it in your presence and at your express direction. The document is still valid; it does not need to be in your own handwriting or signature (Tex. Health & Safety Code Section 166.154(c)).