Power of Attorney

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.

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;
  3. contains the words "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," or similar words showing the principal's intent that the authority conferred on the attorney in fact or agent shall be exercised notwithstanding the principal's subsequent disability or incapacity; and
  4. is acknowledged by the principal before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this state or any other state.

As you may have noticed the Durable Power of allows for flexibility and can take effect immediately or at a later date, thus giving you more control.

Under the Texas HEALTH AND SAFETY CODE, SUBCHAPTER D., a “medical power of attorney” is defined as a written instrument that:

Allows an agent to make any health care decision on the principal's behalf that the principal could make if the principal were competent, but, an agent may exercise authority only if the principal's attending physician certifies in writing and files the certification in the principal's medical record that based on the attending physician's reasonable medical judgment, the principal is incompetent.

And while this certification is important, one must note that treatment may not be given to or withheld from the principal if the principal objects regardless of whether, at the time of the objection:

  1. a medical power of attorney is in effect; or
  2. the principal is competent.

Notwithstanding the existence of a valid power of attorney, the principal's attending physician shall make reasonable efforts to inform the principal of any proposed treatment or of any proposal to withdraw or withhold treatment before implementing an agent's advance directive.

It is only after consultation with the attending physician and other health care providers, that the appointed agent shall make a health care decision that is based on and takes into account the following:

  1. the agent's knowledge of the principal's wishes, including the principal's religious and moral beliefs; or
  2. if the agent does not know the principal's wishes, 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.

Sec. 166.153. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT. A person may not exercise the authority of an agent while the person serves as:

  1. the principal's health care provider;
  2. an employee of the principal's health care provider unless the person is a relative of the principal;
  3. the principal's residential care provider; or
  4. an employee of the principal's residential care provider unless the person is a relative of the principal.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug. 26, 1991. Renumbered from Civil Practice & Remedies Code Sec. 135.003 by Acts 1999, 76th Leg., ch. 450, Sec. 1.05, eff. Sept. 1, 1999.

Sec. 166.154. EXECUTION. (a) Except as provided by Subsection (b), the medical power of attorney must be signed by the principal in the presence of two witnesses who qualify under Section 166.003, at least one of whom must be a witness who qualifies under Section 166.003(2). The witnesses must sign the document.

(b) The principal, in lieu of signing in the presence of the witnesses, may sign the medical power of attorney and have the signature acknowledged before a notary public.

(c) If the principal is physically unable to sign, another person may sign the medical power of attorney with the principal's name in the principal's presence and at the principal's express direction. The person may use a digital or electronic signature authorized under Section 166.011.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug. 26, 1991. Renumbered from Civil Practice & Remedies Code Sec. 135.004 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05, eff. Sept. 1, 1999.

Amended by: Acts 2009, 81st Leg., R.S., Ch. 461, Sec. 8, eff. September 1, 2009.

Sec. 166.155. REVOCATION. (a) A medical power of attorney is revoked by:

  1. 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;
  2. execution by the principal of a subsequent medical power of attorney; or
  3. the divorce of the principal and spouse, if the spouse is the principal's agent, unless the medical power of attorney provides otherwise.

(b) A principal's licensed or certified health or residential care provider who is informed of or provided with a revocation of a medical power of attorney shall immediately record the revocation in the principal's medical record and give notice of the revocation to the agent and any known health and residential care providers currently responsible for the principal's care.

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