Texas Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   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.

2. 2

   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)).

3. 3

   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.

4. 4

   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).

5. 5

   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.

6. 6

   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.

7. 7

   If you name your spouse as agent and later divorce, their authority ends automatically unless your document states otherwise.

8. 8

   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.

9. 9

   This is a different document from Texas's Statutory Durable Power of Attorney, which covers property and financial decisions, not health care.

Texas Requirements for Healthcare Power of Attorney

• Designation of Agent (Texas Health & Safety Code § 166.164)

  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.

• Agent Authority Scope (Texas Health & Safety Code § 166.152(a))

  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).

• HIPAA Authorization (45 CFR § 164.508)

  Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.

• Effective on Incapacity Certification (Texas Health & Safety Code § 166.152(b), (g))

  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.

• Determination of Incapacity (Texas Health & Safety Code § 166.152(b))

  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.

• Revocation Provisions (Texas Health & Safety Code § 166.155)

  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)).

• Witness Requirements (Texas Health & Safety Code § 166.154)

  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.

• Agent Eligibility Restrictions (Texas Health & Safety Code § 166.153)

  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).

• Anatomical Gift Authorization (Texas Health & Safety Code § 692A.004)

  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).

• Mental Health Treatment Decisions

  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.

• Compliance with Patient Self-Determination Act (42 U.S.C. § 1395cc(f))

  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.

• Out-of-State Recognition (Texas Health & Safety Code § 166.005)

  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).

• Successor Agent Provisions (Texas Health & Safety Code § 166.164)

  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).

• Agent's Duty to Act According to Principal's Wishes (Texas Health & Safety Code § 166.152(a))

  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).